Beyond Gonzales

CALLS FOR Alberto Gonzales to resign as attorney general stemmed from the perception that his leadership at the US Justice Department was more about implementing the president's political agenda than about enforcing the laws as Congress intended. Now that Gonzales is leaving, we must ask whether our legal system dodged a bullet -- or whether there's still more corrective work to be done. Put another way, has Alberto Gonzales been the problem, a symptom of the problem, or simply a major contributing factor?

We are supposed to be a government of laws and not of men, but this requires that the government be populated by men and women who believe that. Laws, after all, are not self-executing. They need people to enforce them. But for those who value constitutional rights and democratic ideals, Gonzales's tenure was alarming. An attorney general must not create even the impression that his administration's political agenda is his top priority. After all, the idea that laws can be used to serve political ends or punish political opponents, or that political friends need not fear prosecution, is not the message of a democracy. It has, however, been the message of the Gonzales Justice Department.

Ironically, much of Gonzales's undoing stemmed from a professed desire to protect liberty from its foreign enemies. In the process, Gonzales became, in the eyes of many, its number one domestic enemy. Stories about Gonzales, when he was still White House counsel, imploring a bedridden John Ashcroft to extend authorization for a domestic spying program did not endear Gonzales to those who feel the Fourth Amendment is an important part of the Bill of Rights. And for those who feel the right to due process means something, it did not help that Gonzales was seen as sponsoring legal positions approving torture, disregarding international treaties on human rights, and embracing indefinite detention of suspected combatants.

Gonzales's philosophy, if one can be distilled from his actions and public pronouncements, is that ends justify means. But democracy, in a way, is all about the means -- the process by which desirable ends are achieved.

The problem, though, is bigger than Gonzales, and his resignation provides only some relief. We must also take stock of the presidential administration that minted him and the Senate that enabled him.

It should surprise no one that Gonzales was picked as attorney general by an administration that feels free to treat acts of Congress as mere requests that the executive branch can ignore. President Bush made profligate use of signing statements -- declarations in which he dismissed, as non-binding, those portions of enacted statutes that he dislikes. For his part, Gonzales publicly defended signing statements. So it is not quite fair to say Gonzales spearheaded a diminished respect for the rule of law; in fact, he merely embodied it.

The political culture from which Gonzales emerged could not have endured as long as it has -- and promoted Gonzales to attorney general -- were it not for the indulgence of the Senate. Officers of the United States are not appointed in a vacuum. They get to serve only if the Senate consents.

Senators must hold the next nominee to a higher standard. They need to establish independence and commitment to the rule of law as essential to the job description for attorney general and reject any candidate who does not comfortably meet those requirements.

From time to time, presidents and attorneys general lose their sense of boundaries. It happened years ago when President Nixon instructed Attorney General Elliot Richardson to fire the special prosecutor who was investigating him. To his credit, Richardson refused the instruction, choosing resignation to preserve the independence of the office. Here, one senses that Gonzales's resignation came about because he sacrificed the independence of his office -- but ultimately was unable to withstand the political repercussions of doing so. Richardson's resignation, in other words, served a noble principle; Gonzales's came about because he served a lesser principle.

If any good comes from the Gonzales experience, perhaps it will be that his resignation will usher in a standard of zero tolerance for any chief law enforcer whose agenda is laced with political influence, who appears to lack independence, or whose commitment to the rule of law is wanting. And maybe the next time around, the Senate will apply a level of scrutiny that reassures a nervous and skeptical citizenry.

Kenneth R. Berman is a partner in the law firm of Nutter McClennen & Fish LLP.