GOP Divided on Gonzales Controversy

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Despite President Bush's strong vote of confidence in Washington on Tuesday, even Republicans in Washington are split about the future of Attorney General Alberto Gonzales.

John Ydstie talks with two Republicans who used to work in the Justice Department who disagree about whether Gonzales should resign. Bruce Fein was a Justice Department official in the Reagan administration, and John Yoo served under John Ashcroft and Gonzales in this administration's Justice Department.

Bruce Fein: Attorney General Gonzales Should Go

Bruce Fein

Bruce Fein testifies before the House Judiciary Committee on Capitol Hill May 30, 2006, in Washington, D.C. Fein was a Justice Department official during the Reagan administration. Chip Somodevilla/Getty Images hide caption

toggle caption Chip Somodevilla/Getty Images

Bruce Fein was a Justice Department official during the Reagan administration. He talks with NPR's John Ydstie about Attorney General Alberto Gonzales and the dismissal of eight U.S. attorneys.

Should he stay or go and why?

Well, I think he should go. The Justice Department has a unique position in the Cabinet: It's the steward of the rule of law. And the rule of law, like Caesar's wife, must be above suspicion.

And the attorney general has given what I might call a dynamic rather than a static interpretation of what happened with regard to the firing of these seven or eight U.S. attorneys. He's changed his story from time to time.

And he's said at one point that he didn't even know what his chief of staff was going with regard to this essential function of his: namely superintending and determining whether the U.S. attorneys were adequately performing their jobs, and whether they required removal because of some misconduct or disobedience to the priorities they were supposed to be pursuing.

But that isn't in isolation. This comes at a time when the attorney general has also agreed he was negligent in not knowing what the FBI was doing with regard to the issuance of national security letters.

And when you lose the trust of Congress and the American people, I think that your ability to be the model for the Justice Department has been totally discredited and requires a resignation.

But doesn't the president have the right to retain a loyal Cabinet secretary unless that person has clearly violated the law?

It's surely true that the president has a right to insist on choosing his Cabinet officials. So as a matter of raw power, sure, what Gonzales has done does not yet amount to a high crime and misdemeanor, justifying impeachment. But if the standard for retaining people in the Justice Department (is to be) where anything less than criminality justifies your staying, we soon would have a discredited and tarnished view of the rule of law. The Attorney General has to have a higher standard ... and that standard has not been met.

What about Bush's support? Doesn't that mean he's more likely to stay on?

I don't think it's the president's support that's going to be decisive here. In the same way that he initially supported Harriet Miers for the U.S. Supreme Court, it was really the disenchantment of the public and later, Congress, that caused her to withdraw her name. I think the same will be at work with Mr. Gonzales.

If Gonzales were to leave, who would you see as a likely replacement? Can the president hope to find someone as loyal and like-minded as Gonzales? Or do the circumstances dictate someone more independent?

I think it's the latter. If I can draw some analogy historically, I was around in the Nixon administration. When he then left office, he had two attorneys general, John Mitchell and Richard Kleindienst, who were convicted of crimes. Elliot Richardson quit and Bill Ruckelshaus quit as attorney general because they wouldn't fire Archibald Cox, the Watergate prosecutor.

And in the aftermath, when President Ford came in, he ultimately chose Bill Saxbe, but then Edward Levi was chosen to come in and serve as attorney general. And Ed was someone of great independent stature from the University of Chicago, and he restored, I think, trust and confidence and respect for the department.

And I would think someone like an Ed Levi figure is the one who would most likely succeed an Alberto Gonzales.

John Yoo: Attorney General Gonzales Should Stay

John Yoo, professor at UC Berkeley School of Law

John Yoo, professor at the University of California at Berkeley School of Law, served as Deputy Assistant Attorney General in the Justice Department, 2001-03. Mandel Ngan/AFP/Getty Images hide caption

toggle caption Mandel Ngan/AFP/Getty Images

John Yoo, a law professor at the University of California at Berkeley, once worked for Attorney General Alberto Gonzales. He talks with NPR's John Ydstie about Gonzales and the dismissal of eight U.S. attorneys.

Should he stay or should he go?

I think he should stay as long as we don't see any evidence that a prosecutor or prosecution was tampered with for purely partisan political gains.

Bruce Fein thinks the attorney general should be above the appearance of wrongdoing. What do you say?

If you had that test, that would subject the Justice Department and the people who run it just to whoever has a criticism of the Justice Department.

The important thing is that the administration of law enforcement is not purely neutral. We want our prosecutors and our attorney general to have policy preferences, and to pursue the kinds of cases we elected them to do. It is not just a job that can just be neutrally done, apart from and separate from the rest of the executive branch, or apart from the president's priorities.

Do you think the president's strong show of support Tuesday makes it any more likely that Gonzales will stay?

Oh, yes, I think one thing that was happening was that Republicans, who were getting no sign of support for Gonzales, were starting to jump ship. They didn't want to be caught in the same situation they were with Rumsfeld, where several people were out saying Rumsfeld ought to stay, defending Rumsfeld, and then finding out all of a sudden that he'd been fired and the decision had been made weeks or months earlier.

But doesn't Gonzales suffer from the fact that he really is a creature of the president?

I do think that hurts the attorney general, because he doesn't have a political base of his own. On the other hand, it makes it sound as if people want the good old days of John Ashcroft back as attorney general, who did have broad-based political support.

It doesn't really matter. In fact, we might not want someone who is constantly involved with the Senate or the Congress to be in charge of law enforcement.

I would say, for example, Janet Reno, who many people did not think was a good attorney general, was someone who was quite independent and separate from President Clinton — had a lot of fights and disputes with the president — and that wasn't good, either.

What do you think Mr. Gonzales' legacy will be?

His biggest legacy is going to be, without a doubt, war on terrorism. And historians in the future, I think will look back on the firing-of-the-U.S.-attorneys controversy as a small footnote.

How they'll evaluate him, as they'll evaluate, I think, the Bush administration, is how well they do in the fight against al-Qaida. And how well they do in bringing to an end the Iraq war.

How difficult will it be for Alberto Gonzales to do his job if he does stay, given this controversy?

I think what you have is an administration in the last two years, it's not looking for re-election, it does have some priorities that are dependent on Congress, but a lot of what the executive branch does — a lot of what the Justice Department does — doesn't require constant support from Congress. So I think the attorney general certainly has been wounded, but it doesn't prevent him from doing his job, doing the day-to-day job of taking criminals off the streets, and trying to prevent terrorist attacks.



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