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Published on Monday, August 27, 2007 by Salon.com

The Democrats' Responsibility In The Wake of Gonzales' Resignation

by Glenn Greenwald

One of the most blatantly dishonest political hacks ever to occupy the position of U.S. Attorney General, Alberto Gonzales, has now resigned. This is a real moment of truth for the Democratic Congress. Democrats, who have offered up little other than one failure after the next since taking power in January, can take a big step toward redeeming themselves here. No matter what, they must ensure that Gonzales' replacement is a genuinely trustworthy and independent figure.

That means that Democrats must not confirm anyone, such as Michael Chertoff, who has been ensconced in the Bush circle. Instead, the DOJ and the country desperately need a completely outside figure who will ensure that the prosecutorial machinery operates independently, even if -- especially if -- that means finally investigating the litany of Executive branch abuses and lawbreaking which have gone almost entirely uninvestigated, as well uncovering those which remain concealed.

The standard excuse invoked by Democrats to justify their capitulations -- namely, that they cannot attract a filibuster-proof or veto-proof majority to defy the President -- will be unavailing here. They themselves can filibuster the confirmation of any proposed nominee to replace Gonzales. They do not need Blue Dogs or Bush Dogs or any of the other hideous cowards in their caucus who remain loyal to the most unpopular President in modern American history. The allegedly "Good Democrats" can accomplish this vital step all on their own. They only need 40 Senate votes to achieve it.

It is difficult to overstate how vital this is. The unexpected resignation of Gonzales provides a truly critical opportunity to restore real oversight to our government, to provide advocates of the rule of law with a quite potent weapon to compel adherence to the law and, more importantly, to expose and bring accountability for prior lawbreaking. All of the investigations and scandals, currently stalled hopelessly, can be dramatically and rapidly advanced with an independent Attorney General at the helm of the DOJ.

That is not going to happen if the Democrats allow the confirmation of one of the ostensibly less corrupt and "establishment-respected" members of the Bush circle -- Michael Chertoff or Fred Fielding or Paul Clement or some Bush appointee along those lines. The new Attorney General must be someone who is not part of that rotted circle at all -- even if they are supposedly part of the less rotted branches -- since it is that circle which ought to be the subject of multiple DOJ investigations.

As Democrats supposedly just learned (yet again), even the Bush appointees whom they claim (foolishly) to believe they can trust to act independently, such as DNI Mike McConnell, have their ultimate allegiance to George Bush and Dick Cheney. The President is certainly entitled to choose someone who is generally compatible with him ideologically, but the only acceptable replacement for Alberto Gonzales is someone who is truly independent of the Bush machine and whom Democrats are supremely confident will act independently, which means pursuing criminal investigations where warranted of the highest levels of this administration, including the departing Attorney General himself.

Congressional Democrats, insulting the intelligence of their own supporters, have repeatedly claimed to have trusted the Bush administration and its appointees only to be "betrayed" time and again -- they were "betrayed" by allowing the confirmation of Alito and Roberts to the Supreme Court based on false assurances that they would respect precedent; they were "betrayed" again by the agreement on the Military Commissions Act between the White House and Graham/Warner/McCain only to then have the agreement modified severely by last-minute changes; they were "betrayed" again by trusting Mike McConnell on the FISA deal; and they even claim to have been "betrayed" by supporting the confirmation of Gonzales himself based upon assurances at his confirmation hearing that he understood and would honor his independent role as Attorney General.

That excuse is not going to work again. Relying on assurances from some current Bush appointee that they will act independently is woefully and self-evidently insufficient. Only a truly outside figure, one who is entirely independent of the Bush circle, should be acceptable.

Pressuring Senate Democrats right away on this is vital. There is no more important domestic political goal then ensuring that the DOJ investigative and prosecutorial machinery operates independently. Senate Democrats will have none of their usual excuses if they fail to compel the nomination of someone truly independent and/or if they sit by meekly and allow the appointment of someone whose independence is even questionable.

Whatever it takes -- repeated blocking of nominees, filibustering, protracted hearings -- it is critical that it be done in order to restore integrity to the DOJ. A less-than-independent replacement as Attorney General will be entirely the fault of Democrats if they allow it to happen. Conversely, by ensuring the confirmation of someone independent, Senate Democrats can take a major step in revitalizing the rule of law, revitalizing their political base, showing the country they stand for something, and making the case that the 2006 midterm election change of control actually meant something.

UPDATE: Commenters have suggested that Bush could bypass the confirmation process with a recess appointment, but Bush and Harry Reid have an agreement in place that there will be no recess appointments during Congress' adjournment:

There'll be no recess appointments this time around, Roll Call reports (sub. req.), meaning the White House won't be taking advantage of Congress' vacation to install any contested nominees. That's due to a deal between Bush and Senate Majority Leader Harry Reid (D-NV). . . . Last recess, the White House made a number of controversial recess appointments, including Swift Boat backer Sam Fox as ambassador to Belgium. In order to prevent that sort of thing from happening again, Reid had plotted to keep the Senate in "pro forma" session during the recess -- whereby the Senate floor personnel show up every three days to make it an official session. But now Reid and Bush have made a deal, according to Roll Call. Bush won't make any recess appointments and Reid has promised to move some of his nominees when Senate gets back in session.

Obviously, there is nothing truly binding about the agreement, and Bush could violate it. But in the Beltway world, that is a Draconian step that seems unlikely (though not impossible) for many reasons. Far more likely, it seems, is Bush's (reasonable) belief that Senate Democrats will be as accommodating as usual and confirm a replacement who is acceptable to the administration.

Glenn Greenwald

© 2007 Salon.com

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