Doing Justice

Five months into the buzz over the firing of eight U.S. Attorneys, Congressman Adam Putnam (R. Fla.), third in the House Republican leadership, has called for Attorney General Alberto Gonzales to resign. Putnam joins Senator John Sununu (R. NH), some conservatives, countless Democrats and the mainstream media, imperiling Gonzales's survival. Already, the scandal has forced resignations of three top Justice Department officials.

Contrary to the chatter, the firings were both lawful and, based on publicly available information, proper. However, Gonzales's subsequent confusion and misstatements prove he forgot "the lesson of Watergate: It's always the cover-up, not the crime." Even without any crime. For the good of America and the Administration, the Attorney General should, and I predict will, resign. I'll forecast his successor.

U.S. Attorneys are not civil servants--they are Presidential appointees who are "subject to removal by the President." 28 U.S.C. § 541(c) (2006). So this is an area where "playing politics" is not only acceptable, but intended--President Clinton had all 93 U.S. Attorneys resign when Janet Reno took office in March 1993 and replaced 89 of them within two years. If they could be fired in 2001, they could be fired last year, as even Stuart Gerson, acting attorney general at the start of the Clinton administration, concedes:

There is a difference, but I do not find it to be an important or material one. It is customary for a President to replace U.S. Attorneys at the beginning of a term. Ronald Reagan replaced every sitting U.S. Attorney when he appointed his first Attorney General. President Clinton, acting through me as Acting Attorney General, did the same thing, even with few permanent candidates in mind. What is unusual about the current situation is that it happened in the middle of a term. However, all of the incumbents had served more than the four years presumed in their original commission and, I suggest, replacing them is entirely the prerogative of the executive.

And despite the Dems's intimations, there's no evidence the firings were intended to impede any pending investigation, the sole impermissible rationale. Because it's a political, not civil service, position, it's irrelevant whether the let-go lawyers were competent--the statute doesn't require a reason for removal.

But Gonzales gave inconsistent and incoherent explanations, and denied making "a change in a United States attorney for political reasons." He should have stuck to the truth -- "we wanted to promote some loyal and partisan Republicans" -- and that would have sufficed.

So Gonzales should go. And the nation's senior law enforcement job is too important for a temporary deputy; the quicker a replacement, the better. But with a majority on the Hill, Senate Democrats could turn confirmation hearings into hell (the living sort). So the next Attorney General must be competent, honest and already-known to Washington. Another Harriet won't do.

In the White House, there is such a man: Fred Fielding, currently Counsel to the President, formerly Counsel to President Reagan, and until recently my professional colleague in private practice. Almost the only senior Nixon White House official to survive Watergate unblemished (he was John Dean's deputy Counsel), Fred is the most ethical man I've ever met and a top-grade lawyer. As a bonus, he's also a steadfast, thoughtful Republican. He'll be an outstanding Attorney General--a just boss of that Department.