Special prosecutor should arrive on scene as Gonzales departs

The Baltimore Sun

The resignation of Alberto R. Gonzales marks the end the most dysfunctional and lawless epoch at the Justice Department since the days of John Mitchell, who authorized the Watergate burglary and then lied about it, stepping down as President Richard M. Nixon's attorney general in 1972.

Like Mr. Mitchell, Mr. Gonzales has served his president as enabler-in-chief, earning his reputation as the most loyal member of the Cabinet as he lined up the Justice Department behind the White House's extralegal and unconstitutional maneuverings.

Also like Mr. Mitchell, Mr. Gonzales' loyal services may have included criminal activity: possible perjury before the Senate and other possible violations of law connected to the firing of U.S. attorneys, mistreatment of detainees, warrantless wiretapping programs and other matters.

No doubt the Bush administration would like to put these controversies behind it. But the furor over Mr. Gonzales' tenure will hardly end with his resignation; in fact, it's just beginning. The White House faces not only the unwelcome task of finding a similarly loyal replacement - rumors center on Homeland Security Secretary Michael Chertoff, who would be a controversial choice - but also the last thing it wanted: Senate confirmation hearings for its new nominee.

In the Watergate era, the Senate used the attorney general confirmation process to impose conditions on the White House that checked its power and ultimately held it to account for abusing it. In 1973, after Mr. Mitchell's successor, Richard G. Kleindienst, also resigned under a Watergate cloud, the Senate Judiciary Committee stipulated that it would confirm the new nominee, Elliott Richardson, only on the condition that he appoint a Watergate special prosecutor. On taking office, Mr. Richardson appointed Archibald Cox to the position, setting in motion a chain of events that ended with the House Judiciary Committee voting to impeach Mr. Nixon and prompting his resignation.

The Senate can and should take this precedent to heart and demand a special prosecutor as a condition of confirming a new attorney general. It is already disposed toward imposing conditions on confirmation. Earlier this year, Democratic Sen. Patrick J. Leahy of Vermont, chairman of the Judiciary Committee, said that his panel would not hold confirmation hearings unless White House aides agreed to testify about the firing of U.S. attorneys to clarify whether "the White House has interfered with prosecution." So far, key aides have flouted congressional subpoenas, citing executive privilege, but that might change.

Mr. Leahy's statement on the resignation of Mr. Gonzales, whom Mr. Leahy said flat-out he doesn't trust, sounded slightly ominous: "I hope the attorney general's decision will be a step toward getting to the truth about the level of political influence this White House wields over the [Justice] Department."

There remains plenty of truth to get at, including questions of possible criminality that demand a special prosecutor's scrutiny. Who authorized the U.S. attorney firings? Were they intended to deter or punish investigations or prosecutions of Republicans, and do they constitute obstruction of justice or other crimes? Did Mr. Gonzales perjure himself before the Senate? What was his role in the illegal surveillance of Americans, mistreatment of detainees and other erosions of federal law and constitutional guarantees?

Mr. Gonzales bequeaths us a compromised Justice Department, with damaged morale and credibility, and a near-total blurring of what should be a bright line between enforcement of federal law and political influence peddling. But if Watergate history repeats itself and the Senate insists on a special prosecutor as a condition of confirming a replacement, Mr. Gonzales' legacy could also include the means to bring crimes and abuses to light and make people in high places accountable under the law.

Isn't that what an attorney general is supposed to do?

Former Rep. Elizabeth Holtzman is co-author of "The Impeachment of George W. Bush." She served on the House Judiciary Committee that voted to impeach President Nixon and co-authored the 1973 special prosecutor statute. Her e-mail is eholtzman@herrick.com.

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