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Tuesday, August 28, 2007

Finally! Why AlGo Took So Long to Leave

As of yesterday, Gonzales' resignation became official.  At one level, I see the resignation as a puzzle (in addition to being a great relief).  After all, AlGo defied months of intense bipartisan pressure and betting on when he'd leave. Remember when Slate's Gonzo-meter predicted with 95% confidence that he'd be gone on a particular day in April?

So what took almost six months for him to do the right thing, to permit the slim chance of restoring the veneer of competence and fair-dealing to the head of Department of Justice? Here are some possibilities:

a) Gonzales wanted to show that he wasn't caving to any pressure in particular, but wanted to go on his own time, even if his foot-dragging impeded the President's ability to faithfully execute the laws.
b) Gonzales wanted to take advantage of the Bush Administration's legendary August vacations.
c) Gonzales wanted to find a cushy job at Boeing (or equivalent) and  it takes some time to arrange a soft landing, even for the Attorney General, when Senators from both parties want to put your head on a spike.
d) Gonzales didn't want to leave office until James Comey revealed the true story of AlGo's botched manipulation of an ailing hospital bed-stricken John Ashcroft.
e) Gonzales didn't want to leave until David Lat had completed his coverage on Shanetta Cutlar.

Honestly, I have no sense why he actually waited so long to leave. His own brief statement reveals no substantive information. Any informed speculation?

As to the successors, there are a few candidates from the Republican side that would be much less terrible: notwithstanding Michael Chertoff's difficulties at DHS, I think he'd be much better at Justice. The problem is that moving Chertoff away from DHS now might instigate higher transition costs than is worthwhile, especially for a department of DHS's scope and responsibilities, assuming that Chertoff has improved on the job at DHS (I can't really say that he has).  Clement's move from the SG to be Acting AG is a good one as predictable and competent apparatchiks go; my choice (were I Republican) would be for Comey, but I see that as about as likely as selecting Eugene.   

Update: I see now that Emily and Dahlia at Slate were intrigued by the same question I was, and they offer their own reasons for AGAG's slow  departure. Check it out.

Update 2: Thanks to JHA at TVC, I see that there's a short WaPo profile of Paul Clement that you may want to look at, especially if you wonder whether Clement will turn out to be predictable.

Posted by Administrators on August 28, 2007 at 07:56 AM in Law and Politics | Permalink


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Tracked on Aug 28, 2007 12:19:07 PM


I concur with Simon. I don't remember anyone applauding OLC's "independent" judgment re interrogation techniques. The ABA certainly hasn't applauded OLC's independent judgment regarding signing statements.

And back in the 1990s, I don't recall any "moderates or liberals" who swooned over Ken Starr's or Louis Freeh's "independence."

Posted by: Adam | Aug 28, 2007 11:24:43 PM

[Clement's] background seems to evince no record of the kind of independence that makes moderates or liberals swoon over Comey or Fitzgerald (relatively speaking). Dan, call me a cynic, but I don't think it's anything as platonic as "independence" that has produced "swoon[ing] over Comey or Fitzgerald" in quarters hostile to the administration - it's utility. It's because they've provided (or become) a handy weapon with which to assail a hated political enemy. If they were independent in ways that couldn't be weaponized, either there'd be no interest, or more likely - for example, if Fitzgerald had reported he had found no wrongdoing - they'd simply be dismissed as "not independent."

Posted by: Simon | Aug 28, 2007 6:48:21 PM

To me it seems that the timing of Gonzales's resignation was heavily influenced by two factors: (1) he wanted to stay on as long as possible, but knew he couldn't last the rest of the entire administration; and (2) the White House had asked that if anyone was going to jump-ship before the end of the administration, they should resign before this upcoming Labor Day. Thus the late-August resignation.

Posted by: Joel Smith | Aug 28, 2007 6:37:09 PM

Here in Wisconsin, we have our priorities straight on how to react to this story: Today's headline in the Milwaukee Journal-Sentinel was "Native subs for Gonzales; Attorney general resigns, Cedarburg graduate fills in"


Posted by: Bruce Boyden | Aug 28, 2007 1:06:51 PM


I think it is a combination of Rule-of-Law values (amorphous though they might be) and a post-New-Deal conception of the role of executive departments. As to the latter, we want departments to use their area expertise and their independent judgment to check the worst excesses of partisanship from both the White House and Congress. As to the former, we particularly and uniquely expect DOJ to independently evaluate the legality of the President's policies and actions and to act on that independent evaluation. For the President to not be above the law, it is incumbent on DOJ to keep him on this side of it.

Of course, in criticizing Gonzales as to the latter notion, we cannot put to one side the merits of this President's policies and actions. The criticism is launched by people who believe the administration crossed the line (interrogation, surveillance, handling of USAs) and Gonzales's major failure was not only failing to push back, but bringing DOJ along for the ride.

Posted by: Howard Wasserman | Aug 28, 2007 12:33:56 PM

Crap, i just lost my comment before I entered it.
In short, I have nothing but high hopes for Clement's arrival as Acting AG. I know he's performed his role as SG in the technical sense -- as one adversary of his suggested, "making the unreasonable seem reasonable" -- to great acclaim from former SGs from both sides. That said, his background seems to evince no record of the kind of independence that makes moderates or liberals swoon over Comey or Fitzgerald (relatively speaking). And that capital is much desired in a DOJ believed to be crippled by sharp polarization.
Here are a couple articles that helped form my opinion:

Of course, I'm open to be persuaded and intensely hopeful that Clement will relieve that sense of frustration felt by many about DOJ's recent chief.

Posted by: Dan | Aug 28, 2007 11:28:09 AM

Clement's move from the SG to be Acting AG is a good one as predictable and competent apparatchiks go . . .

Dan, what's your case that Paul Clement is some kind of "predictable apparatchik"? That seems like an odd thing to say.

Posted by: Orin Kerr | Aug 28, 2007 10:38:59 AM

The members of our household are still reeling from Bush's press conference on the resignation: an egregious and painful display of denial and self-deception (assuming he meant to say what he in fact said).

Posted by: Patrick S. O'Donnell | Aug 28, 2007 9:49:35 AM

Rick, I'm not sure the reasonable voices in support of AlGo's departure urged that departure on the grounds that he proved to be an insufficent check on Bush. It was that he had lost all credibility performing a role in which he was supposed to be fair and impartial in pursuing the enforcement of the law and the administration of that enforcement. In short, the problem for many people wasn't that AlGo failed to be a check on POTUS, but that he was no longer behaving ethically when, for instance, he tried to manipulate the chain of command in the episode with Comey and Ashcroft, or failed to testify persuasively on the prosecutors' firings. Or...the list could go on.

Posted by: Dan Markel | Aug 28, 2007 9:03:13 AM

Dan, I share your sense of "finally" w/r/t the AG's resignation. That said, a question: Why do many smart lawyers, professors, and journalists (appear to) believe that it is (part of) the job of the Attorney General to "check" the President? Putting aside questions about the merits of this particular President's policies, is there any reason -- structural, textual, moral, etc. -- why we should blame an AG for not-"checking", or for supporting, the policies of the Administration of which he or she is a part (assuming, obviously, that he or she can do so without behaving unethically or immorally)?

Posted by: Rick Garnett | Aug 28, 2007 8:37:11 AM

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