BUSH LEAGUE: More of Bush's cronyism: i- ncompetent friends in high places

The Mess He Left Behind

Gonzales's successor will face daunting challenges at a scandal-plagued agency

By Emma Schwartz

Posted 9/2/07

The resignation of embattled U.S. Attorney General Alberto Gonzales was never a question of if but of when. So when Gonzales finally announced last week that he will leave the Justice Department, his departure offered a glimmer of hope that the beleaguered agency would at last have a chance to remake an image sullied by months of scandals.

Gonzales's inability to explain—or even, he said, remember—whether politics played an undue role in the department's hiring, firing, and prosecution decisions turned the former Texas Supreme Court judge and presidential confidant into a symbol of all that was wrong inside the 110,000-person bureaucracy.

But with little more than a year remaining in the Bush administration, the next attorney general will face daunting challenges in trying to rebuild the department. Election-year politics, congressional probes, an unpopular president—these and other barriers mean that even the strongest candidate may have to settle for piecemeal reform.

The initial hurdle for the White House is finding someone with the bipartisan credibility necessary to winning Senate confirmation—and to regaining the confidence of both department staffers and the American public. As when President Gerald Ford named the respected Edward Levi to the attorney general's post after the Watergate scandal, the White House this time will need to appoint someone whose independence and judgment are unquestioned.

"More than any individual policy, the Senate will be looking for a guarantee that the attorney general will serve justice rather than the president," says Jonathan Turley, a George Washington University law professor.

Loyalists. That guarantee could be hard to secure. Many of the possible replacements for Gonzales—Homeland Security Secretary Michael Chertoff, former Solicitor General Theodore Olson, and soon-to-be Acting Attorney General Paul Clement—are seen as loyal conservatives. And the White House may be unwilling to nominate someone who would break from some of the core tenets that made Gonzales so divisive: the use of executive power to justify practices like the National Security Agency's warrantless domestic wiretapping and limiting the rights of the detainees at the Guantánamo Bay naval base.

What's more, winning Senate approval may require other compromises by the Bush administration. The Democratic-led Congress could hold up the confirmation process with its outstanding subpoenas to the White House for documents and testimony related to the unexplained firings of at least eight U.S. attorneys last December and the wiretapping program. Democrats have questioned whether inappropriate political considerations played into the firings, and they remain concerned about the scope and legality of the NSA program.

Confirmation won't put an end to questions about the department, either. Senate Judiciary Chairman Patrick Leahy, a Vermont Democrat, has vowed to continue the investigations that led to Gonzales's downfall. In addition to the U.S. attorney dismissals, the department has been under fire for alleged political influence on cases handled by the civil rights division. The department could come in for even more criticism when Inspector General Glenn Fine releases his reports into whether any wrongdoing occurred. And Fine confirmed last week that he is looking into whether Gonzales lied to Congress about a number of issues, including the NSA program and the U.S. attorney scandal.

The Justice Department may also butt heads with Congress over the expiration next year of recent changes to the Foreign Intelligence Surveillance Act, which expanded the department's ability to screen E-mails and phone calls inside and outside the United States without judicial scrutiny. The administration says the legislation is crucial to national security, but progressive groups have condemned it for what they say is its lack of oversight and potential for privacy violations.

Congress is also likely to continue prodding the department over other long-standing concerns: the future of Guantánamo, renewed calls for immigration reform, and the FBI's use of national security letters. An inspector general's report found that the FBI has routinely used these letters—authorization without court review to obtain personal information about suspects in national security investigations—without proper basis, potentially violating civil liberties.

Low morale. On the defensive, the Justice Department will find it difficult to press forward with any new policy initiatives. Morale among career staffers, who bristle at allegations of political interference in prosecutions, remains low. Worse, the next attorney general will have to fill more than a half-dozen recently vacated top positions, including the heads of the Office of Legal Policy and the tax division.

While there may be many young lawyers eager for a plum political appointment, their willingness may not translate so easily into Senate confirmation. It will be looking for independence among the political appointees, too. Among the new AG's personal staffers, as well, Congress will watch out for appointees like former aide Monica Goodling, who admitted she may have "crossed the line" by bringing partisan politics into the administration of justice.

Yet the next attorney general may be able to break from the past in one important respect: recasting the public perception of the department. Key to that, says Daniel Metcalfe, who recently resigned as head of the department's Office of Information and Privacy, will be to "acknowledge that there has been damage to the department's reputation that is no less serious than what afflicted it during the Watergate era."

That admission could go a long way toward boosting the morale of career staffers, who have dutifully prosecuted cases despite the breakdown at the highest echelons of the department.

Still, even if the next attorney general reverses the anger against one of the most important wings of the executive branch, the policies are likely to remain. And it is those policies that have made the Bush Justice Department—particularly Gonzales—such a lightning rod.

This story appears in the September 10, 2007 print edition of U.S. News & World Report.