Attorney General Alberto Gonzales has continued his campaign to survive at any cost in the face of allegations ranging from false statement to violations of federal surveillance law. Despite persistent calls for Gonzales’ removal or impeachment, his allies dismiss the possibility he committed crimes while emphasizing that he is tough on crime. It is a defense that leaves many lawyers chuckling. The fact is that Gonzales is the best thing to come along for criminal defendants since Ernesto Miranda.
Gonzales’ appetite for unchecked power has served to undermine prosecutions and alienate courts. The latest example can be found in the recent ruling against the government in the prosecution of Rep. William Jefferson, D-La. In May 2006, Gonzales approved the FBI raid of Jefferson’s office in an investigation of bribery and corruption charges. The raid violated a couple hundred years of precedent. In the past, the Justice Department simply worked with Congress to secure such material.
Soon after the raid, I testified in the House Judiciary Committee that it was blatantly unconstitutional and entirely unnecessary since Congress not only cooperated in past investigations but previously helped the Justice Department acquire access to congressional areas in the Jefferson investigation. When White House lawyers encouraged Gonzales to return the documents and work with Congress, he refused and threatened to resign.
Now, a federal court has stated the obvious: Gonzales’ raid was unconstitutional under the Speech or Debate Clause protecting members of Congress and their materials. Notably, the court said members could be forced to turn over such documents, and nothing prevents responsible searches conducted within the constitutional system. In other words, the raid was entirely avoidable.
The great beneficiary of Gonzales’ latest blunder is, of course, Jefferson. Gonzales succeeded in making Jefferson the victim despite the fact that in a separate raid of his Washington home, agents found $90,000 in a freezer. Jefferson’s trial has been delayed, and his lawyers intend to challenge the evidence acquired in his office.
Pushing the limits
Throughout his tenure, Gonzales has tried the impossible: to use the legal system to acquire extralegal powers. It is an unnatural act, like Winston Churchill’s description of a man standing in a bucket and trying to lift himself up by the handle. Like President Bush, Gonzales often ignores the easier alternative of working within the constitutional system to achieve the same objectives.
The case of Jose Padilla is another example of how the administration is often the greatest danger to itself. A U.S. citizen accused of working for al-Qaeda, Padilla was arrested at Chicago’s O’Hare International Airport while Gonzales was White House counsel and John Ashcroft was attorney general. Padilla could have simply faced terrorism charges. Instead, the administration declared that the president had the authority to unilaterally declare citizens to be enemy combatants and strip them of their rights, including their access to counsel or the courts. The administration maintained this position for years despite international criticism and rulings against the government by lower courts.
Because of the alleged abusive treatment of Padilla, the government was unable to prosecute him for the crimes that led to his arrest. Now the Justice Department is trying to convict him on other offenses. Many experts believe that Padilla’s case has been so damaged by abuses that he should be released and that, even if convicted in Florida, he has some great issues for appeal because of his extralegal confinement.
Like Padilla, many of those individuals held at Guantanamo Bay, Cuba, and other locations are moving into federal courts seeking release due to abuses. These include suspects who claim to have been tortured under prior policies supported by Gonzales. Some of these individuals might have been convicted in federal court as terrorists, but the administration chose extralegal means that could result in their walking free. Because of court fights and repeated changes by the administration, only a handful of detainees are likely to even face trials. Close allies like England are demanding that their citizens be released.
A tainted Justice Department
Federal judges now openly question the veracity of government filings; many Republican appointees are ruling in favor of criminal defendants and civil liberties. Even Justice Department attorneys have complained that they are “ashamed” of the politicization and unprofessionalism of the department under Gonzales.
Prosecutors were selected for their political purity rather than their legal abilities. Gonzales ordered the replacement of some of the most effective and respected prosecutors in the country with lawyers such as Tim Griffin, whose only known qualification was service as an aide to Karl Rove.
So what’s not to like about Alberto Gonzales? He has undermined easy cases, replaced talented prosecutors with political stooges, alienated even conservative judges, and forced both Republicans and Democrats to call for greater protection of civil liberties. At this rate, the American Civil Liberties Union may well name a wing after him. Who knows, Jefferson, Padilla and others may well be able to attend the ribbon-cutting.