JURIST Contributing Editor Peter Shane of Moritz College of Law, Ohio State University, says that the resignation of Alberto Gonzales as US Attorney General creates welcome potential for a new direction at a Justice Department politicized and tainted by his fervent embrace of executive power...
Administration backers may hope that Gonzales' successor will be equally fervent in his assertion of presidential prerogative, equally stubborn in the practice of executive branch secrecy, and equally partisan in his willingness to politicize all levels of the Department of Justice. That scenario is unlikely.
The President will not be able to get a Gonzales clone confirmed as Attorney General with the Senate under Democratic control. The Judiciary Committee will insist on a level of openness and cooperation that the Administration has so far been unwilling to provide.
The President could fill the post through a recess appointee, but only at some serious political cost. Congress will not give a recess appointee either the informal deference or the formal legal authority that the White House would want. Especially with a permanent rewrite of the Foreign Intelligence Surveillance Act under discussion, a recess appointee would seriously weaken the Justice Department's position.
As for Gonzales himself, it seem unlikely that his resignation will either increase or decrease his legal vulnerability to congressional subpoenas or his legal capacity to assert executive privilege on particular matters. If possible, however, he now finds himself in an even weaker political position, which could affect the public positions he is able to advocate with any force.
Perhaps the best development for Gonzales is that his resignation likely makes his impeachment a political non-starter. He is not technically immune from impeachment. The only other cabinet official ever impeached, Secretary of War William Belknap, was tried after he had resigned. Because a potential penalty for impeachment is disqualification from federal office, in addition to removal, such a proceeding would not be legally meaningless. Yet, it surely will not happen.
Alberto Gonzales is likely to be remembered for his double-barreled disservice to the law. First, his lack of awareness, concern, or both with respect to the politicization of the Justice Department, combined with his inability to provide a candid, cogent, and consistent explanation for the Department's behavior has demoralized the career lawyers and line prosecutors who are the Department's heart and soul. It will take years to repair the damage.
Second, as White House Counsel and, then, as Attorney General, Alberto Gonzales was a central figure in advancing the most audacious and unjustified claims in American history on behalf of inherent presidential authority. When the two words most likely associated in the public mind with your government service are "torture memo," your legacy is not a good one.
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State's Moritz College of Law.