http://www.washingtonpost.com/wp-dyn/content/article/2007/04/19/AR2007041902234_5.htmlSEN. SHELDON WHITEHOUSE, D-R.I.: Thank you, Mr. Chairman.
Here's what concerns me, Attorney General Gonzales. The administration of justice in our country is controlled within structures. Some of them are constitutional structures. Some of them are statutory structures.
But some of them are structures that have developed over time, that amount to tradition and practice, but they're there for good and important reasons.
And my concern, after reading your testimony and hearing your testimony today, is that you don't seem to be aware of the damage to those structures that this episode has caused.
And I'd like to run a few by you, just to let you know where I'm coming from.
The two areas where you ask us to agree with you, in your testimony: The first is that U.S. attorneys can be fired at will by the president. That's undeniably true, but I think its use as a rhetorical point in this discussion is highly misleading, deeply misleading.
Because I think you and I both know that, for years, for decades, there has been a tradition of independence on the part of United States attorneys.
Once they're appointed, unless there is misconduct, they're left to do their jobs. And that rule, that practice, has existed for good and meaningful reason. And it can't be overlooked by just blithely saying, well, the president has the power to remove these people.
That misses the point. These people make tough decisions. They're out there on their own very different. Very often, the Department of Justice and the political environment that surrounds it is one that you want to protect them from.
And the idea that, willy-nilly, senior staff people can come out and have the heads of U.S. attorneys -- I think it's highly damaging to that peace of structure.
This was not customary practice. We can agree on that, can we not?
GONZALES: Senator, I think that that's -- I do agree on that. And I do agree with you that structures and traditions are important. I agree with that as well.
WHITEHOUSE: Well, the second piece of the structure here that I think is significant is that, although you, as attorney general, are in command of the administration of justice in the federal system, there's actually very little prosecution that takes place out of main Justice.
The enormous majority of the prosecutive authority of the United States of America has been dispersed out into 93 judicial districts. and it's been dispersed to men and women who have certain characteristics.
One is that they're from the local community, and when they're done, they go back and they live in that local community.
WHITEHOUSE: And it's good for the administration of justice when they're accountable in that way for their decisions, given the power and often terror that prosecutive action can create in a family.
The second is that they've got to get a senator to sign off on it. In fact, they've got to get a majority of the whole Senate to sign off on it, and the president of the United States.
And when those things happen, it creates a corps, if you will -- c-o-r-p-s -- a corps of practicality, of common sense, of responsibility, of experience that I consider to be a huge value to the administration of justice in this country.
And in every way in which this was handled, it is highly destructive of that independence, whether it's people from Justice going out and taking these positions, whether it's ducking Senate confirmation, whether it's not bringing people from the local community up to take those positions or whether it's the general level of disrespect that's been shown for the United States attorneys through this whole process.
And I guess I'd like to ask you to comment. Do you think that that's a structural component of the administration of justice -- that dispersion of the authority out to 93 independent local U.S. attorneys -- that has value and that is important, that should be protected?
GONZALES: I do think it has value. And I think that the independence of the United States attorneys is important. I think United States attorneys should feel independent to exercise their judgment in prosecuting cases based upon the evidence.
However, I have to qualify that a bit, Senator, in that -- that with respect to policies and priorities, again, the president of the United States is elected based upon his policies and priorities.
WHITEHOUSE: I'll spot you that, Attorney General.
But my point is when you're making a decision like that, there's a counterbalance to it. When you go to Carol Lam and say, "You know what, you're not doing enough immigration prosecutions, therefore you're fired," there are all sorts of collateral consequences of that -- some of which are really quite damaging and evil, particularly when you're knocking off somebody who is known among her colleagues as being really the prime United States attorney in the country on public corruption prosecutions. It sends a really rough message.
So in the balancing between the structural protections and the respect and all of that, and this question of policy, I would hazard to you that you can't let the policy question just run away with the issue. You first think it through thoughtfully, and I can't find a place in the whole tragic record of this situation, in which that careful thought was administered.
GONZALES: No question about it. No question about it that we have to take into account how decisions may affect ongoing cases. There's no question about that.
But we also -- I think it's important for the American people to understand that even when there's a chance at the top with the attorney general, or a change in the United States attorney, the cases continue.
WHITEHOUSE: That's true.
GONZALES: The cases continue to be investigated.
WHITEHOUSE: As you and I know, the leadership from the U.S. attorney makes a big difference. That's why you thought these replacements were important in the first place.
GONZALES: They do -- they do make a big difference...
WHITEHOUSE: If I may make my second point, because I'm running out of time here. It's the second thing that you suggest, which is we should further agree on a definition of what an improper reason for the removal of a U.S. attorney would be. And over and over again you've used the word "improper" as sort of your target word as to where the boundary is, to where you should and shouldn't go.
But your definition of improper is almost exactly the same as Kyle Sampson's. He came in here and testified, he said, without consulting with anybody, and said that the improper reasons include an effort, and I quote, "to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage."
And your testimony is, "...to interfere with or influence a particular prosecution for partisan political gain."
You've loaded up those words. You've used them repeatedly. And I think that the definition of where impropriety lies, clearly that would be improper. That would be grotesquely improper.
But I think you've set the bar way low for yourself, if that's your standard of where impropriety is, because -- and I'd like to hear you comment on this -- I think any effort to add any partisan or political dimension into a U.S. attorney's conduct of his office, irrespective of whether it's intended to affect a particular case or not, is something that we need to react to firmly, strongly, resolutely, and without any tolerance for it.
And yet you've set the bar so that it's not impropriety until it affects a particular case.
Why did you do that?
GONZALES: Senator, because the accusations that have been made primarily, certainly as an initial matter, was that there was something improper; we were trying to interfere with particular cases.
And that's why certainly the focus in my mind was to focus on: OK, well, what is the legal standard?
And I think it's important for us to understand, as an initial matter: What is the legal standard; what would be inappropriate or improper?
WHITEHOUSE: But something a lot less than that would be improper, would it not? I mean, when Admiral Byng got hanged there was the famous comment: Every once in a while you got to hang an admiral just to encourage all the others.
You know, if you hang a U.S. attorney every once in a while just to discourage all the others, even if your intention is not to affect a particular case, you have to agree that would be highly improper.
GONZALES: Senator -- well, it may be improper as a matter of management. Some would have to wonder: Is that really an appropriate way to manage the department?
But, again, Senator, you have to understand that...
WHITEHOUSE: Well, otherwise it would be obstruction of justice, correct?
GONZALES: ... that these individuals have served their four years, they're holding over. There's no expectation of a job here. There shouldn't be, because of the fact that they are presidential appointees.
GONZALES: Now, clearly, as a management issue, there is value added to a person who has served as a United States attorney in terms of experience, expertise. And so, those things are very important.
WHITEHOUSE: It's more than just a management issue. It's an issue about the structure through which justice is administered in this country.
And when it's broken and when it's damaged and when the attorney general of the United States says the only place where impropriety exists is when political and partisan influence has risen to the point that it's intended to affect a particular case, but otherwise it's fine, I have a real problem. And I think everybody in America should have a real problem with that.
My time has expired.
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