A California Perspective on AG Alberto Gonzales’ Problems

By Peter Scheer

The spectacle of Attorney General Alberto Gonzales twisting in the wind, struggling to explain one misstatement after another about the purge of eight US Attorneys, presents a number of ironies, especially to observers in California.

For starters there’s Congress’ feigned dismay in discovering that federal prosecutors are subject to political pressures in their handling of cases that are of interest to members of Congress. (‘Shocked, shocked to find politics in the nation’s capitol . . .’) Before Congress overreacts with new rules to restore the political virginity of the Justice Department, it should bear in mind that lobbying of prosecutors, even in ongoing investigations, is not invariably corrupting.

Consider, for example, the enlisting of key members of Congress to intercede with the Attorney General on behalf of San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada. In January, when the reporters still faced the threat of jail for refusing to comply with subpoenas for their confidential sources in the BALCO matter, Gonzales heard from a number of Congressional heavy-hitters, including House Speaker Nancy Pelosi, House Judiciary Chairman John Conyers, and Rep. Tom Davis, senior Republican on the House Oversight Committee. The Attorney General was urged, in no uncertain terms, to order the withdrawal of the subpoenas for the reporters’ testimony.

The issue of prosecutors’ independence from political meddling, whether from Congress or the Executive Branch, is a complicated one. Some degree of political accountability for US Attorneys may be a good thing. Because any attempt to regulate in this area is likely to prohibit many interactions that are benign as well as interactions that are not, Congress should avoid prescribing substantive rules. If it must “do something” in the wake of investigations into the US Attorney-firings, it should simply require disclosure: All communications with federal prosecutors about a specific investigation or prosecution must take place publicly, on the record, with doors wide open.

Disclosure will deter the worst abuses: No member of Congress will pick up the phone and importune a US Attorney to indict his political opponent if that conversation has to be publicly reported. At the same time, a requirement of disclosure would permit influential members of Congress to lean on the Justice Department to discontinue a misguided strategy of forcing journalists to reveal their confidential sources.

Another irony of the Gonzales chronicles is the Attorney General’s misfortune to be investigated under federal rules that require greater transparency than rules that prevail in California. Gonzales is in trouble because his early statements about why eight US Attorneys were dismissed (‘performance issues’), and who was involved in the decision to fire them (‘not me’), have been contradicted by extensive evidence in the form of thousands of pages of emails delivered to Congress by the Justice Department and the White House.

These emails, by staff aides in the White House Counsel’s office, the Attorney General’s office, and the staffs of other senior Justice Department political appointees, are a window into the Administration’s decision-making. They contain staff recommendations, candid assessments of prosecutors’ performance, and discussions of political strategy. As such, it is doubtful they ever would have seen the light of day in the Golden State. Government officials in California would block disclosure by invoking the “deliberative process privilege,” California’s counterpart to the “executive privilege” in the federal system.

But in Washington the administration apparently concluded that it could not successfully assert executive privilege to avoid release of the emails. Although the administration has invoked executive privilege to resist Congressional demands that executive branch officials testify in public and under oath about the US Attorney-dismissals, there has been no similar tug-of-war over the emails.

Secretive as the federal government is in many areas, its deliberations are an open book compared to California, where even county supervisors and city council members use the deliberative process privilege as an excuse for keeping embarrassing emails and other communications out of public view. This is yet another reason for California to abandon the woefully misguided deliberative process privilege, which was created by the California Supreme Court over 15 years ago. There’s no justification for state and local officials to conduct public business behind a taller wall of secrecy than Cabinet level officers of the federal government.

Finally, there’s the issue of federal prosecutors’ relationship with the White House. As political appointees, the Attorney General and the US Attorneys serve at the pleasure of the President; they have only as much independence as the President chooses to give them. The debate about how much independence is appropriate may seem odd to Californians: their state Attorney General is not only elected to that office in a statewide vote, but is elected separately from the Governor.

The California Attorney General enjoys a degree of independence that is unthinkable in the relationship of the US Attorney General and the President. California’s system is also, let’s face it, rather odd: The Governor is responsible for seeing that the laws are faithfully executed, but his chief law enforcer–who, as in the case of Attorney General Jerry Brown, may even belong to a different political party than the Governor–is free to pursue policies and priorities of his own choosing. Now that’s independence.

Peter Scheer, a lawyer and journalist, is executive director of CFAC.