Outside the Beltway

Unnecessary Scandal

James Joyner · Friday, March 23, 2007 · 6 comments

Charles Krauthammer argues that Attorney General Alberto Gonzales should resign or be fired sooner rather than later for his handling of the U.S. Attorney firing mess.

It’s not a question of probity, but of competence. Gonzales has allowed a scandal to be created where there was none. That is quite an achievement. He had a two-foot putt and he muffed it.

How could he allow his aides to go to Capitol Hill unprepared and misinformed and therefore give inaccurate and misleading testimony? How could Gonzales permit his deputy to say that the prosecutors were fired for performance reasons when all he had to say was that U.S. attorneys serve at the pleasure of the president and the president wanted them replaced?

And why did Gonzales have to claim that the firings were done with no coordination with the White House? That’s absurd. Why shouldn’t there be White House involvement?

That’s exactly right. My only dissent would be to note, as I have before, that “the White House” is a nebulous term meaning different things to different people. Gonzales may have meant “the president” rather than “the president’s staff.”

Krauthammer is right, too, about the rules of the game:

But the fact is that there are thousands of laws on the books and only finite resources for any prosecutor to deploy, which means that one must have priorities about which laws to emphasize and which crimes to preferentially pursue. Those decisions are essentially political. And they are decided by elections in which both parties spell out very clearly their law enforcement priorities. Are you going to allocate prosecutorial resources more to drug dealing or tax cheating? To street crime or corporate malfeasance? To illegal immigration or illegal pollution? If you’re a Democrat today, you call the choice “political” to confer a sense of illegitimacy. If you’re a neutral observer, you call the choice a set of law enforcement priorities reflecting the policy preferences of the winner of the last presidential election.

For example, both voter intimidation and voter fraud are illegal. The Democrats have a particular interest in the former because they see it diminishing their turnout, while Republicans are particularly interested in the latter because they see it as inflating the Democratic tally. The Bush administration apparently was dismayed that some of these fired attorneys were not vigorous enough in pursuing voter fraud.

There is absolutely nothing wrong with this. Pursuing voter fraud is not, as The New York Times pretends, a euphemism for suppressing the vote of minorities and poor people. It is a mechanism for suppressing the vote of (among other phantoms) dead people. Conservatives have a healthy respect for the opinion of dead people — conservatives revere tradition, which Chesterton once defined as “the democracy of the dead” — but they draw the line at posthumous voting.

If the White House decides that a U.S. attorney is showing insufficient zeal in pursuing voter fraud — or the death penalty or illegal immigration or drug dealing — it has the perfect right to fire him. There is only one impermissible reason for presidential intervention: to sabotage an active investigation. That is obstruction of justice. Until the Democrats come up with any real evidence of that — and they have not — this affair remains a pseudo-scandal. Which would never have developed had Gonzales made the easy and obvious case from day one.

That’s exactly right although there’s enough circumstantial evidence in the direction of interference to raise eyebrows.

I’ve written a piece for publication elsewhere on the need to depoliticize crime and decriminalize politics. Unfortunately, the two are not only related but self-reinforcing. While I take Krauthammer’s point that it makes sense for elected leaders to set priorities for prosecutors, drawing the line between that and political interference in the criminal justice system is problematic. Indeed, I’m not sure that we haven’t moved past the point where it’s possible.