Washington is all atwitter over who will replace outgoing Attorney General Alberto Gonzales. The more relevant question, however, is who would want to step over the chalk outlines of his two predecessors on the office rug to sit in that seemingly cursed chair.
Indeed, of all of the famous curses from King Tut’s tomb to the Hope Diamond to the Monkey’s Paw, the Bush Curse of the Juris Doctors (or the J.D. Curse) appears the most lethal. With John Ashcroft or Gonzales as the most vivid examples, bad things happen to attorneys who go to work for this administration.
This summer has seen a stream of disgraced or demeaned Bush lawyers departing government service. This includes Deputy Attorney General Paul McNulty, chief of staff Kyle Sampson, counselor Monica Goodling and at least five other top Justice Department officials. The situation is little better outside the department. (See Harriet Miers and Lewis “Scooter” Libby.) J.D.s just do not seem to go well with the W.
Since I know and like a few of the people mentioned on the short list for Gonzales’ replacement, I have been thinking about the curse and how a lawyer can both serve and survive the Bush administration. The obvious home remedies appear unlikely to work. Wearing garlic or surrounding the AG desk with religious icons are not likely to do much. One has to go to the heart of the curse’s cause: Bush himself.
The very thing that made Gonzales appealing to Bush proved his undoing as attorney general. He acted more as an enabler than as an attorney for Bush.
When the president wanted rough methods to be used on detainees, Gonzales was there with a pen in hand to sign a memo defending the use of acts viewed as torture under international law. When Bush wanted to override Justice Department officials who viewed his domestic surveillance programs as unconstitutional, it was Gonzales who appeared at the hospital bed of Ashcroft to coerce a signature. When Bush wanted to declare citizens enemy combatants and strip them of their constitutional rights, Gonzales assured the president that he had the power. When Congress demanded answers to embarrassing questions, the attorney general gave evasive answers and then conveniently claimed dozens of lapsed memories to avoid further questions.
Bush’s favorite lawyers tend to follow this same model of treating the law as simply one means to an end rather than the end itself. The fact is that if Gonzales had been a little more attorney than general in this war on terror, he would have been a much better attorney general. Instead, like his predecessor Ashcroft, Gonzales gamed the system: misleading or lying to Congress, continually changing positions in the courts, moving around detainees and defendants to avoid judicial review.
At the same time, with law degraded to a mere option, politics filled the void. Gonzales promoted aides such as Goodling who lacked any substantive credential beyond a type of Baathist Party-like loyalty. Experienced U.S. attorneys were replaced by political cronies with little experience, such as Tim Griffin, an aide to Karl Rove.
Like other curses, therefore, the Bush J.D. Curse begins with a voluntary act to proceed despite the dire warnings. Consider the curse of the boy king Tutankhamen. When archaeologist Howard Carter opened the tomb in 1922, he found a clay tablet that warned of death to those who entered. Of the 40 people present at the opening of the tomb, six died not long after. By comparison, the Bush curse has already racked up to almost a dozen fallen lawyers, and the administration still has 16 months to go.
One way to resist
There is only one way to avoid the Bush J.D. Curse, as James Comey, the former acting attorney general, discovered. You must stay faithful to your oath as an attorney and serve justice rather than the president. Comey refused to sign off on the flagrantly unconstitutional domestic surveillance program and later testified truthfully before Congress. Comey was ultimately forced out. But he survived while those who stayed and surrendered have professionally perished.
Ironically, Bush may have few remaining options but to hire an actual lawyer with independent judgment for the AG chair. Some of the contenders might have what it takes to survive.
Homeland Security Secretary Michael Chertoff showed a modicum of independence in his brief stint as a federal judge. Acting Attorney General Paul Clement is likely to fight for the same questionable programs but would do it within the constitutional system. Sen. Orrin Hatch, R-Utah, understands Congress and has a deep respect for the three-branch constitutional system. Securities and Exchange Commission head Christopher Cox has a long and distinguished legal career that he would not likely jeopardize to please a lame-duck president. Former deputy attorney general Larry Thompson is a contender for the Supreme Court (as was Gonzales) and is not going to throw it away (as did Gonzales) as a political sycophant.
Other candidates, such as White House homeland security adviser Frances Townsend, are relative unknowns and would raise questions about their professional independence and judgment.
Of course, some of these individuals, such as Chertoff, could have some difficulties in confirmation. But their greatest dangers lie on the other side of confirmation, when they enter the suite on the 5th floor of the Justice Department building. Thus, to whomever will be selected to enter that Tutankhamen tomb, I offer the following advice: If you stay faithful to your oath as a lawyer, you might survive the Bush J.D. Curse. And, as an added incentive, I will personally send you a celebratory “I Survived the Bush Justice Department” T-shirt on Jan. 20, 2009.
published in USA Today: August 29, 2007