Attorney General Bruce Fein
It is likely -- though not entirely certain in these tumultuous times for the dangerously adrift Bush-Cheney administration -- that the next Attorney General of the United States will be a conservative.
The question is whether he or she will be a conservative who disregards the Constitution -- as did the disgraced and disgraceful Alberto Gonzales -- or a conservative who respects the document.
Richard A. Viguerie, the political direct-mail pioneer who has been referred to as "the funding father of the conservative movement," ought to understand the distinction better than just about anyone.
Viguerie has been at odds with the Bush-Cheney administration for the past several years -- arguing, appropriately, that the current president and vice president have abandoned conservative principles in order to expand the power and authority of the federal government.
Last year, Viguerie authored a smart book on the subject, Conservatives Betrayed -- How George W. Bush and Other Big Government Republicans Hijacked the Conservative Cause (Bonus Books). This year, he signed on with an even smarter initiative, the American Freedom Agenda, an effort by conservative leaders to reassert basic Constitutional principles by prohibiting warrantless spying, restoring habeas corpus, banning extraordinary rendition and torture, barring presidential signing statements and renewing open government protections.
The American Freedom Agenda, led by Viguerie, former Georgia Congressman Bob Barr, American Conservative Union chair David Keene, Reagan administration lawyer Bruce Fein and Viguerie has bluntly assessed the failings of the Bush-Cheney administration when it comes to defending the Constitution and the Republic it serves. "Especially since 9/11, the executive branch has chronically usurped legislative or judicial power, and has repeatedly claimed that the President is the law," it declared. "The constitutional grievances against the White House are chilling, reminiscent of the kingly abuses that provoked the Declaration of Independence."
In April, Viguerie, Keene, Barr, Fein and their allies signed a letter to President Bush calling for the firing of Attorney General Alberto Gonzales. "Mr. Gonzales has presided over an unprecedented crippling of the Constitution's time-honored checks and balances. He has brought rule of law into disrepute, and debased honesty as the coin of the realm," they declared. "He has engendered the suspicion that partisan politics trumps evenhanded law enforcement in the Department of Justice."
Now that Bush has fired Gonzales -- and, make no mistake, the timing of the Attorney General's exit on the eve of what will likely be Bush's roughest month as president, confirms that this is not a willing exit -- Viguerie is proposing a list of candidates to fill the nation's top law-enforcement job.
Disappointingly, most of the names of Viguerie's list are individuals who have sided with the Bush-Cheney administration in assaulting the Constitution. For instance, Viguerie suggests Chris Cox, the current chairman of the U.S. Securities and Exchange Commission. But in October, 2001, when he was serving in the House, Cox voted for the USA Patriot Act. House Republicans such as Texan Ron Paul and Idaho's Butch Otter opposed the act because they recognized that it attacked basic Constitutional protections. By any reasonable measure, Cox failed the most critical Constitutional test of his congressional tenure.
The same goes for former Pennsylvania Senator Rick Santorum, a Patriot Act supporter in 2001 and defender in the years that followed. In 2006, Santorum also voted for the Military Commissions Act, which the American Freedom Agenda campaign has made a prime target of its criticism. From a Constitutional perspective, Santorum would be an atrocious choice to follow Gonzales.
Ted Olson, the Bush-Cheney administration's Solicitor General from 2001 to 2004, failed at every critical turn to defend individual liberties, as did former Virginia Governor Jim Gilmore, who chaired a congressional commission on terrorism that did a miserable job when it came to balancing security concerns and the duty to defend basic freedoms.
If Viguerie and other conservatives are serious about undoing the damage Bush, Cheney and Gonzales have caused to the Constitution, they need to come up with better choices than these.
Where to begin? Why not with Bruce Fein, the chairman of the American Freedom Agenda?
Fein is qualified. A much-published Harvard Law School graduate who served as an associate deputy attorney general from 1981 to 1982 and as general counsel to the Federal Communications Commission, he has frequently been called on by Republicans and Democrats to help them sort through prickly Constitutional issues.
Fein is a true conservative, and he would serve as a very conservative Attorney General. But he would take his oath of office seriously, particularly the section requiring him to defend the Constitution rather than the political whims of the president and vice president.
So why did Viguerie refrain from proposing the name of Fein, a candidate who would do everything that Viguerie and other true conservatives know must be done to remake and renew the Department of Justice as an agenda that respects the Constitution?
Unfortunately for his own ambitions, Fein is an sincere conservative. As such, the man Ronald Reagan trusted to enforce the laws of the land has called, most recently in an appearance we did together on "Bill Moyers' Journal," for the opening of impeachment hearings targeting President Bush and Vice President Cheney. Additionally, he was working with a Democratic congressman on articles of impeachment against Gonzales at the time of the Attorney General's resignation.
Fein's willingness to put principle above politics undoubtedly disqualifies him from consideration by Bush as a successor for Gonzales. But Viguerie and other Constitutional conservatives owe their compatriot -- and their country -- better. Anyone who is serious about cleaning up the mess at the Department of Justice knows that the job will not be done by lawyers who have, by their actions, shown that they do not understand the basic intentions or values of the nation's founding document.
Bruce Fein's name belongs on the list of conservatives who would make appropriate replacements for Alberto Gonzales. Indeed, Fein's name should be at its top.
John Nichols' new book is The Genius of Impeachment: The Founders' Cure for Royalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use of the 'heroic medicine' that is impeachment with a call for Democratic leaders to 'reclaim and reuse the most vital tool handed to us by the founders for the defense of our most basic liberties.'"
Copyright © 2007 The Nation