LAWFUEL – The firestorm surrounding U.S. Attorney General Alberto Gonzales has reached a point where it has created a legal liability for the White House with an executive privilege debate that could lead to court action.
Bloombergs report that President George W. Bush resisted pressure to fire Gonzales, claiming Democrats in Congress were on a witch hunt. Lawmakers haven’t backed off, hammering away at the attorney general’s credibility. Gonzales now faces demands for a criminal investigation and calls for his impeachment.
“Just when you think it couldn’t get any worse, it gets worse,” said Douglas Kmiec, a former Justice Department legal counsel in the Reagan administration.
Congress and the White House are already embroiled in a battle over executive privilege that could be headed for a showdown in court. Bush has refused to provide documents sought by the lawmakers investigating the firings, and top aides have defied subpoenas to testify under oath.
Yesterday, 15 House Democrats introduced a resolution calling for an investigation into whether there are “sufficient grounds” to impeach Gonzales.
The call for an independent prosecutor on the perjury allegations was made last week by Democratic Senators Charles Schumer of New York, Dianne Feinstein of California, Sheldon Whitehouse of Rhode Island and Russ Feingold of Wisconsin.
They asked Solicitor General Paul Clement to appoint a lawyer from outside the Justice Department to decide whether Gonzales should be charged with obstruction of justice and perjury. Clement, the administration’s top courtroom lawyer, is acting attorney general in matters in which Gonzales has recused himself.
Legal experts say perjury cases are tough to prove.
“You need to be precise, to show there is no wiggle room or ambiguity in the answers the person gave,” said Bennett Gershman, a former prosecutor and now a professor at Pace Law School in White Plains, New York. “I’m not sure it’s as clear here as some of the Democrats claim.”
Any special counsel would face major obstacles, including handling classified information and dealing with a charged political climate, said Kmiec, the former Justice legal counsel who is now a professor at Pepperdine University School of Law in Malibu, California.
Clement wouldn’t “want the job of appointing anyone, and I’d be very surprised if there is anyone not a partisan who would want the job,” Kmiec said.
Whatever the outcome of the investigations, the administration may still want to stick with Gonzales, said one former Justice Department official.
Gonzales’s successor would have to be “very independent and spotlessly clean” to get confirmed by the Senate, said Philip Heymann, a professor at Harvard Law School who was deputy attorney general in the Clinton administration.