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Attorney General’s Resignation Raises Legal Questions

August 27, 2007 at 6:10 PM EDT

ALBERTO GONZALES, U.S. Attorney General: Yesterday I met with President Bush and informed him of my decision to conclude my government service as attorney general of the United States effective as of September 17, 2007.

KWAME HOLMAN: For months, Attorney General Alberto Gonzales ignored calls for his resignation, arguing that decision belonged to the president. But during a weekend visit to the president’s ranch in Crawford, Texas, Gonzales told Mr. Bush the time had come for him to step aside. This morning, the president said he agreed reluctantly.

GEORGE W. BUSH, President of the United States: It’s sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeding from doing important work because his good name was dragged through the mud for political reasons.

KWAME HOLMAN: The president had been one of Gonzales’ remaining defenders since the firestorm surrounding the abrupt dismissal of eight U.S. attorneys exploded in February.

GEORGE W. BUSH: He’s got support with me. I support the attorney general.

SEN. HARRY REID (D-NV), Senate Majority Leader: Gonzales should be fired.

KWAME HOLMAN: Congressional Democrats, however, questioned whether Gonzales orchestrated the firings, which they called “politically motivated.”

SEN. PATRICK LEAHY (D), Vermont: It was an abuse of power, committed in secret, to steer certain outcomes in our justice system, and then to try to cover up the tracks.

KWAME HOLMAN: During congressional hearings this spring, Gonzales maintained it was his Justice Department deputies who actually decided who should be fired, but when asked repeatedly was unable to provide any details.

ALBERTO GONZALES: Senator, I have searched my memory. I have no recollection of the meeting; I don’t remember where that conversation took place.

KWAME HOLMAN: Eventually, Republicans began to lose confidence, questioning how Gonzales could run his department with so little knowledge of what his top staffers were doing.

SEN. JEFF SESSIONS (R), Alabama: Your ability to lead the Department of Justice is in question. I wish that were not so, but I think it certainly is.

SEN. TOM COBURN (R), Oklahoma: I believe that the best way to put this behind us is your resignation.

KWAME HOLMAN: But Gonzales refused to do so.

ALBERTO GONZALES: I serve at the pleasure of the president of the United States.

KWAME HOLMAN: And the president remained by his side.

GEORGE W. BUSH: I’ve got confidence in Al Gonzales doing the job.

KWAME HOLMAN: But then a new barrage of criticism was leveled against Gonzales last month. He once again told members of the Senate Judiciary Committee that there had been no internal dissent over the administration’s warrantless wiretapping program, revealed publicly in late 2005.

SEN. ARLEN SPECTER (R), Pennsylvania: Mr. Attorney General, do you expect us to believe that?

KWAME HOLMAN: Previous testimony by former Deputy Attorney General James Comey indicated there was exhaustive debate over the issue. Comey said Gonzales — then-White House counsel — even went to the hospital room of Attorney General John Ashcroft to pressure him to reauthorize part of the program.

JAMES COMEY, Former Deputy Attorney General: Mr. Gonzales began to discuss why they were there: to seek his approval for a matter.

KWAME HOLMAN: But Gonzales told senators that discussion with Ashcroft concerned a different intelligence program.

ALBERTO GONZALES: The disagreement that occurred and the reason for the visit to the hospital, Senator, was about other intelligence activities. It was not about the Terrorist Surveillance Program that the president announced to the American people.

KWAME HOLMAN: However, two days later, Gonzales again seems to be contradicted, this time by FBI Director Robert Mueller, who testified about the hospital meeting.

ROBERT MUELLER, FBI Director: The discussion was on a national — an NSA program that has been much discussed, yes.

KWAME HOLMAN: The administration’s warrantless wiretapping effort was one of many controversial post-9/11 programs Gonzales had a hand in, first as White House counsel, then as attorney general. In 2002, Gonzales wrote a memo that many interpreted as condoning the torture of terror suspects. He also helped push through the Patriot Act, parts of which were criticized for violating civil liberties.

Today, New York Democrat Chuck Schumer said the next attorney general must put the rule of law first.

SEN. CHUCK SCHUMER (D), New York: And today I say to the White House that we Democrats implore you to work with us. Don’t choose the path of confrontation and throw down the gauntlet with a nominee that we will find it difficult to accept.

KWAME HOLMAN: Schumer is a member of the Senate Judiciary Committee, which will have a strong say in approving the next attorney general. However, the president has yet to announce a nominee. Solicitor General Paul Clement will serve as acting attorney general after Gonzales leaves office next month.

Two perspectives on Gonzales

Michael Greenberger
Former Justice Department Official
The pressure that's been brought to bear on him over the last few days over inconsistencies in testimony he's delivered has aggravated the situation. I think he thought it was best for him to go.

GWEN IFILL: Now, two ways of looking at the Gonzales news, legal and political. Judy Woodruff has the first take.

JUDY WOODRUFF: And for that, we are joined by Noel Francisco, who served as White House associate counsel and deputy assistant attorney general during President Bush's first term. He's now in private law practice in Washington. And Michael Greenberger, principal deputy associate attorney general during the Clinton administration, he is now a professor of law at the University of Maryland and the director of its Center for Health and Homeland Security.

Gentlemen, thank you both for being with us.

Noel Francisco, to you first. You worked with Alberto Gonzales for, what, five years? You know him well. Can you shed any additional light on his decision?

NOEL FRANCISCO, Former Deputy Assistant Attorney General: Well, the attorney general has gone through seven very difficult years, helping guide the government and the law enforcement establishment through some of the most difficult times faced in modern American history. It takes a toll on an individual.

I think, after seven years of going through this, and particularly the barrage of criticism that he's undergone in the last year or two, he finally had a chance to evaluate. And he said, "You know, I've done my service to my country. I'm not sure there's much more I can accomplish. And now's a good time to step down." I really don't think there's a whole lot more to it than that.

JUDY WOODRUFF: But you're saying this not based on having spoken with him about it, is that right?

NOEL FRANCISCO: That's right.

JUDY WOODRUFF: And, Michael Greenberger, you haven't -- you're a Democrat. You worked in the Clinton administration. From your perspective, though, what does it look like to you happened here?

MICHAEL GREENBERGER, University of Maryland: Well, I think what happened here is the Justice Department in the first place is in disarray. And I think the most important speaker in your set-up piece is Senator Sessions from Alabama, certainly someone quite sympathetic to the Bush administration, but a former U.S. attorney in Alabama.

And having served in the Justice Department myself, and in fact in a Republican administration as well, I can tell you that 80 percent, 85 percent of the issues are not ideological. The Justice Department is there to go after organized crime, terrorists, drug cartels, what have you.

And right now, there's now going to be no attorney general. There's no deputy attorney general. There's no associate attorney general. Their chiefs of staff are gone, and you have the number-four person who's got a full docket himself, the solicitor general, trying to run the Justice Department.

I think the morale at the department has sunk to really quite a low level, and there's a feeling that justice is just not being served in the United States. The department is headless and has been headless for several months.

JUDY WOODRUFF: And you're saying that's the legacy of...

MICHAEL GREENBERGER: That is the legacy of the attorney general. And I believe the pressure that's been brought to bear on him over the last few days over inconsistencies in testimony he's delivered has aggravated the situation. I think he thought it was best for him to go.

Making an example of Gonzales

Noel Francisco
Former Justice Department Official
What gets missed is the larger point, which is that we really did need to turn a government around in terms of its approach to terrorism and criminal law enforcement, and Gonzales did that.

JUDY WOODRUFF: Noel Francisco, how do you see his legacy?

NOEL FRANCISCO: Sure. I think that -- I'd like to respond a little bit to what Michael just said, because I think he's right that there is a morale problem in the Department of Justice, but I think he's wrong to try to hang that on the neck of the attorney general.

What we see has happened is that a Democratic Congress has decided that they wanted to try to make an example of the attorney general, and so they've gone after him for every possible misstep and tried to blow every misstep into a huge monumental issue, with the sole purpose of trying to remove him from office, and I think the Democrats have been quite candid that that's been their goal all along.

If you take a step back from that, I think what you're going to see his legacy as being is a little bit better than the one that Michael paints. Having come into the government at a time where the mindset of the United States government and the Department of Justice was not on fighting terrorism, but was, as Michael said, focused largely on prosecuting organized crime and pursuing ordinary criminals, Attorney General Gonzales and previously White House counsel Gonzales had to try to shift the mindset of the government so that the United States was on the offensive, not falling into the narrow mindset that this is simply a criminal law enforcement issue, but turning the Department of Justice into an anti-terrorism agency, such as you see happening today.

JUDY WOODRUFF: And is that how you see what part of his legacy is?

MICHAEL GREENBERGER: Well, there's probably no more significant effort being made to make this dynamic change than his approach to a very sick Attorney General John Ashcroft on March 12, 2004. And it wasn't the Democrats who got in his way when he made that search; he wanted to overrule the acting attorney general, Deputy Attorney General Comey's resistance to parts of the warrantless wiretap program.

And I must say that hospital room situation and the events that have come out quite recently, where the attorney general had said it wasn't about the intelligence program, but the very next day, or soon thereafter, Robert Mueller disagreed with him. And the bearing of the deputy attorney general, Comey, in his testimony about that event and Robert Mueller, both appointed by President Bush, evidences there was real concern about the leadership in this department on that specific issue and generally.

NOEL FRANCISCO: And I don't think there's any question that there was disagreement on certain aspects in the war on terrorism, but I think what gets missed is the larger point, which is that we really did need to turn a government around in terms of its approach to terrorism and criminal law enforcement, and Gonzales did that.

Yes, there were disagreements. But I as an American would much rather have those disagreements be erring on the side of being too robust in our protection of the homeland than not robust enough, which is unfortunately, I believe, what we had prior to September 11th.

JUDY WOODRUFF: What is your response to that?

MICHAEL GREENBERGER: Well, I would say there's no more robust supporter of the homeland than the United States Supreme Court, a court that is made up of five Republican appointees. And at the end of 2004, Attorney General Gonzales was rebuffed in the Hamdi case and the Rasul case, where the detention policies of the administration were overturned.

In June of 2006, the Hamdan case came down. The entire military commission network and avoidance of the Geneva Conventions that Attorney General Gonzales set in motion came down on a 5-3 vote. And the court, much to everybody's surprise, has now taken the Boumediene case, which is a continual challenge to this so-called turn that the attorney general wanted to make. He's not been able to convince the United States Supreme Court or at least five justices on the court that this turn is important.

Divisive issues surrounded Gonzales

Michael Greenberger
Former Justice Department Official
The point of him either appearing not to be in control of his own Justice Department or otherwise dissembling with Congress has been very, very troublesome. I clearly think the attorney general brought this on himself.

JUDY WOODRUFF: So he's saying that outweighed the other steps that the attorney general took with regard to wiretaps and so forth?

NOEL FRANCISCO: I'm not sure that's right at all. I would agree that the Supreme Court has turned back a handful of the administration's anti-terror policies. But one point that I'd emphasize is, every time the Supreme Court has turned them back, they've turned them back because they said the administration has gone too far in protecting the homeland.

I, for one, would much rather be in a position of being rebuffed when we are too aggressive and try too hard to protect than homeland than to face the consequences of not being aggressive enough, which I believe is what we did face on September 11th.

JUDY WOODRUFF: How much of the controversy around this attorney general do you believe is due to his own actions and how much is due to the fact that he's a close representative of President Bush?

MICHAEL GREENBERGER: I certainly feel it's his own actions. After all, he got crosswise with his own chief of staff and the White House liaison that was in his office. He testified that he never considered that U.S. attorney list. His chief of staff said they talked about it for two years.

Monica Goodling came very close to saying that he tried to coach her into what her testimony ought to be. Again, these are not Democrats that have caused the attorney general problem; it's his handling of the position. And I think the point of him either appearing not to be in control of his own Justice Department or otherwise dissembling with Congress has been very, very troublesome. I clearly think the attorney general brought this on himself.

JUDY WOODRUFF: What about this point about how much was this because he was acting on his own or because he was a spokesperson, a representative of the president?

NOEL FRANCISCO: Judy, I really think it's a product of the times. We have a country that's very closely divided on some very big and important issues. We're going into a presidential election where these issues are what's dividing the various candidates in each primary.

And as a result, there is the decision that's been made to make an example of Attorney General Gonzales. I don't care who the attorney general was. I think you would have seen the similar thing going on regardless of who the attorney general was. The issue might have been a little bit different, but they'd still be trying to come out with a scalp.

The ongoing congressional probe

Noel Francisco
Former Justice Department Official
Whenever the majority party and the Congress has decided to make an example out of a government official, past or present, that person is always in legal jeopardy. I believe that's the position that Attorney General Gonzales is in right now.

JUDY WOODRUFF: Two other quick questions. First of all, is he in any legal jeopardy going forward because of these ongoing congressional investigations?

MICHAEL GREENBERGER: Well, I think that remains to be seen. There certainly are a lot of inconsistencies in his testimony. I think both parties at one point quite recently agreed that he hadn't crossed the line in terms of dissembling with Congress.

But there's a lot of documents and a lot that the Democratic Congress wants to see. All I can say is I think that the record needs to be assembled. I think it certainly has got to be on his mind, and it's certainly on the Senate Judiciary Committee's mind.

NOEL FRANCISCO: Whenever the majority party and the Congress has decided to make an example out of a government official, past or present, that person is always in legal jeopardy. I believe that's the position that Attorney General Gonzales is in right now.

JUDY WOODRUFF: What is he most going to be remembered for, Noel Francisco?

NOEL FRANCISCO: I really do think that, once we have the distance of history between us, the American people and history will look at the attorney general and look and see that he made the right decisions and the president made the right decisions in combating the war on terror and combating this new and dramatic threat to our country.

MICHAEL GREENBERGER: I think the attorney general will be remembered for ending up in disputes with other Bush administration officials, whether they be United States attorneys, his deputy attorney general, his FBI director, his chief of staff, or the White House liaison.

The department is in disarray. It's probably in worse disarray than it's been in modern times, and I think that is going to be his legacy. And I don't think history will be a kind observer on his time in the Justice Department.

JUDY WOODRUFF: Gentlemen, we will leave it there. Michael Greenberger, Noel Francisco, we thank you both.