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Having spent the last week overseas, I was busy on return catching up with missed episodes of Jon Stewart’s “Daily Show.” And I found the fake-news coverage of the testimony of Alberto Gonzales to be nothing less than brilliant. It has been recast as a cheap telenovella, set in Mexico City, and entitled ¿Mamá por qué es el mentiroso todavía a cargo de la ley? (“Mommy, why is the lying man still in charge of the law?”) If you haven’t yet seen it, take a second to do so now. In it, Alberto Gonzáles makes his rounds, visiting the hospital bedside of John Ashcroft. Over at Comedy Central, they have chosen to accentuate the seedy, inherently incredible side of the Gonzales saga—”we’re going to the K2 summit of obfuscation,” Stewart tells his listeners at the outset. It’s a tragedy, but in the Greek tradition, a tragedy involves the fall of a hero; this is about a very small and petty man.
In the American tradition up to the arrival of Bush, a cabinet officer trapped in serious misconduct resigns to protect the dignity of the office. With the arrival of Bush, these attitudes have changed fundamentally. The preservation of American traditions and institutions counts for nothing; the exaltation of power in the hands of Bush is the ultimate object of all conduct. This regime is, and has from the start been, about the transformation of the American political system: from a democracy into what fellow-traveler David Brooks calls a “more authoritarian sort of government,” and which the Founding Fathers would simply call “tyranny.”
So Gonzales stays on, and by staying on, he continues the demolition of public confidence in the institutions which he heads—the Department of Justice and the FBI—and indeed in the process of justice in the country altogether. Under President Bush, the administration of justice has been politicized in a way not seen since at least the early days of the Republic—the period that Thomas Jefferson called the “reign of witches” when the Federalists used their control of the U.S. attorneys to attack and silence their political opponents. Even as the politicization is exposed, Gonzales presses ahead with more. He tells the Chicago Tribune that he fully intends to continue to arrange meetings between U.S. attorneys and Republican lawmakers so that the GOP agenda can be translated more forcefully into prosecutorial conduct.
Gonzales is a man to whom the rule “watch what we do, not what we say” fully applies. Even as he was telling the Senate Judiciary Committee of his commitment to end the politicization of the prosecutorial process—which he oversaw—he presses ahead with a program to speed up that process. At the core of the politicization process are two programs: prosecute prominent Democrats, fabricating the evidence to support cases where needed, and act to suppress Democratic voter registration programs. The Bush Administration criminal program focuses on the “voting fraud” fraud—authorizing the aggressive prosecution of minor cases involving individuals trapped in innocent mistakes in voter registration. This tactic belongs to the historical arsenal of Jim Crow tactics and was used consistently in the past to harass organizations like ACORN who attempted to register the disenfranchised citizens on the periphery of our society. It has consistently been used extremely selectively—never invoked against Republicans who make “mistakes” registering to vote. Consider this fact, for instance: both Karl Rove and Ann Coulter “accidently” registered and voted in places where they do not live. Indeed, in Coulter’s case, an FBI agent actually intervened, forcefully, to shut down a criminal inquiry launched by local authorities, demonstrating that the Gonzales Justice Department operates in two modes: prosecute if Democrat; block any law enforcement effort if Republican. They could each have been prosecuted. But prosecutors choose not to act in these cases, and in all others involving Republican voters. The tool is intended to be, and is used as, a weapon to carry out a partisan agenda.
Gonzales is not going to resign. He is in a position to block any criminal inquiry into his own misdeeds and those of other Administration officials, and that is exactly what he is doing. Under his watch, the Department of Justice has become what the Fire Department is in Rad Bradbury’s Fahrenheit 451–as you will recall, it existed not to put out fires, but to start them; and in a similar manner, the Bush Justice Department seems to exist not to prosecute crimes, but to commit them. At this point, the Gonzales Justice Department is easily guilty of enough predicate criminal offenses to qualify for application of the Racketeer-Influenced and Corrupt Organizations Act (“RICO”).
What options does Congress have before it now? Dissolve the Department of Justice and transfer law enforcement responsibilities to the states? That’s actually been raised a few times now, but it’s hardly a reasonable approach to the problem. In fact the Department of Justice was once a highly respected institution. It was viewed as nonpartisan and professional. Congressional priorities should rather be to restore that reputation and set the Justice Department upright once more.
The sensible next step is advocated by the New York Times this morning: impeach Alberto Gonzales.
Americans have been waiting months for Mr. Bush to fire Attorney General Alberto Gonzales, who long ago proved that he was incompetent and more recently has proved that he can’t tell the truth. Mr. Bush refused to fire him after it was clear Mr. Gonzales lied about his role in the political purge of nine federal prosecutors. And he is still refusing to do so — even after testimony by the F.B.I. director, Robert Mueller, that suggests that Mr. Gonzales either lied to Congress about Mr. Bush’s warrantless wiretapping operation or at the very least twisted the truth so badly that it amounts to the same thing. Mr. Gonzales has now told Congress twice that there was no dissent in the government about Mr. Bush’s decision to authorize the National Security Agency to spy on Americans’ international calls and e-mails without obtaining the legally required warrant. Mr. Mueller and James Comey, a former deputy attorney general, say that is not true. Not only was there disagreement, but they also say that they almost resigned over the dispute.
Both men say that in March 2004 — when Mr. Gonzales was still the White House counsel — the Justice Department refused to endorse a continuation of the wiretapping program because it was illegal.…
[This] confirmed what most people long ago concluded: that Mr. Gonzales is more concerned about doing political-damage control for Mr. Bush — in this case insisting that there was never a Justice Department objection to a clearly illegal program — than in doing his duty. But the White House continued to defend him. As far as we can tell, there are three possible explanations for Mr. Gonzales’s talk about a dispute over other — unspecified — intelligence activities. One, he lied to Congress. Two, he used a bureaucratic dodge to mislead lawmakers and the public: the spying program was modified after Mr. Ashcroft refused to endorse it, which made it “different” from the one Mr. Bush has acknowledged. The third is that there was more wiretapping than has been disclosed, perhaps even purely domestic wiretapping, and Mr. Gonzales is helping Mr. Bush cover it up.
Democratic lawmakers are asking for a special prosecutor to look into Mr. Gonzales’s words and deeds. Solicitor General Paul Clement has a last chance to show that the Justice Department is still minimally functional by fulfilling that request. If that does not happen, Congress should impeach Mr. Gonzales.
The Times’s analysis is very close to the mark. I hesitate only over their suggestion that we wait for Solicitor General Paul Clement to appoint a special prosecutor. That isn’t going to happen. Among the crowd now at the top of the Justice Department, Clement is the only person with a minimal reserve of integrity, and the only one who has not been overtly compromised. But he is also a highly political ideologue who has made a series of preposterous, and at times disingenuous, arguments in presentations to the Supreme Court (including insisting in oral argument that no prisoners at Guantánamo had been mistreated, which was an outrageous untruth, sustainable only by his failure to look into what was happening). And recently he issued a completely over-the-top memorandum on Executive Privilege to bolster the sagging legal posture of the Bush Administration. Can Clement be counted upon to do the right thing? I’d put very long odds against it. And if he did appoint a special prosecutor, I’d be very suspicious of the choice. Which counsels for proceeding immediately to impeachment.
Congress’s agenda is now clear, and the issues couldn’t be more important. In the end this is not about Alberto Gonzales and his numerous misdeeds. It’s about our constitutional form of government, and what sort of relationship the Executive will have to the law for generations to come. It is about tyranny. As Euripides said, when one man holds to himself the power to make and define the law, justice is dead, and the people suffer. And that’s just where America stands in the summer of 2007.
More from Scott Horton:
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Is it possible to simply disband the partisan FISA court?
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Notes on South Africa’s failed revolution
“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”