The resignation of Attorney General Alberto Gonzales puts a spotlight on
how precarious is the rule of law in America's political system, although
not for the reasons partisans will think.
The problem isn't the Bush administration's disregard for the rule of law,
as Democratic partisans will have it. Nor is it the pummeling of the
nation's top law enforcement officer by Democrats for political gain, as
Bush loyalists will have it.
The problem is institutional.
The essence of the rule of law is the impartiality of the administration of
justice, that outcomes aren't affected by status.
The notion that the Bush administration has unusually injected politics
into the Justice Department is historically fanciful. John Kennedy
appointed his brother and chief political advisor as attorney general.
Richard Nixon appointed his campaign manager.
Nor has any Democratic critic offered a plausible explanation of why firing
eight U.S. attorneys at the start of a second term, as Bush did, is more of
an injection of politics than firing all of them at the start of a first
term, as Bill Clinton did. Clinton is also the only president to fire the
FBI director he inherited since a ten-year term was established for the
position after the Hoover era.
There is some indication that there was political pressure to move some
voter fraud investigations along. However, the main issues over the
administration of justice in the Bush administration are matters of policy,
not politics.
Bush has asserted a very expansive view of the inherent powers of the
presidency to protect the country against terrorist attack. I've been
sharply critical of some of these assertions, particularly with respect to
the warrantless surveillance program, which I believe violated both the
Fourth Amendment and the Foreign Intelligence Surveillance Act. However,
the Bush position is not without legal foundation.
Several courts have referred to the president's inherent right to gather
intelligence to protect the country, although the contours of that
authority haven't been judicially mapped. This Supreme Court has held that
the congressional authorization of force resolution against al-Qaida after
the 9/11 attack triggered the president's war powers, which certainly
include gathering intelligence about enemy activities.
Having an attorney general who forcefully articulates and defends the
president's legal position on his anti-terrorism powers isn't injecting
politics into the administration of justice.
Nevertheless, the institutional protections for the rule of law are
uncomfortably weak in our system.
There is, first of all, a fusion of responsibilities that should be
separated. All organizations, including governmental ones, need their own
lawyers to advise and defend them. That's simply a reality of our highly
legalistic and litigious world.
Law enforcement, however, should be separated from this advise-and-defend
role. The president's chief legal advisor and defender shouldn't also be
the top prosecutor.
The ten-year term of office for the director is intended to partially
buffer the FBI from political influence. However, as Clinton demonstrated,
the director still serves at the pleasure of the president.
At the federal level, the most successful model for achieving appropriate
political accountability but operational independence is the Fed. There is
an ethic of independence that guides the appointment process. Board members
are appointed for a single 14-year term, and they can only be removed for
cause.
The powerful chairman is appointed from the board for a four-year term, but
the term spans the presidential election cycle, at least partially
buffering monetary decisions from the political calendar.
The institutional protections for the rule of law are even weaker at the
state and local level. If judges and prosecutors are elected, those
positions will be filled by politicians who will be inappropriately
influenced by political considerations. To assert otherwise is to defy
everything we know about human nature and the political process.
The rhetoric surrounding Gonzales' tenure and resignation is badly
misdirected. A constructive reaction would be to thoughtfully sort out the
functions of the Justice Department, and separate the advise-and-defend
role from the law enforcement role. And then provide additional
institutional protections to the independence of the prosecutorial
function.
