Gonzales - to resign or not to resign. That is the question.

Supposedly, Confucious said “When you go for revenge, first dig two graves” or something wise like that. I believe I first heard a version of it on the 70s adventure “Kung fu”. If Kwai Chang Caine says so, it’s good enough for me.

At least, it would be good advice whenever there is a power swing in the political world As one very liberal gentleman said to me in explaining why Democrats should keep going after Attorney General Gonzales . . . “Besides, they’re the bad guys”. One only needs to listen to talk radio for a few minutes to know that Limbaugh and co. feel precisely the opposite and just as deeply about it.

Americans do not want partisanship (take a look at Harris Polls at http://www.harrisinteractive.com/harris_poll/index.asp?PID=572). However, it takes a lot of people to put up a building, and one person can knock it down with a bomb. The same is true for political amity. One partisan act to destroy the other side always leads to retaliation when there is a change in which party has the majority.

So Gonzales and Libby were begat by the virulent Whitewater and impeachment hearings which were begat by the virulent Clarence Thomas and John Tower hearings which were begat . . . . and so on. Someday, sooner or later, history tells us the Republicans will regain the Congress, and they will take revenge. And then they will lose power, and the Democrats . . . .

That being said, there are times that all administrations push too far, need to be reined in, and should be. If they are wise, they eventually see it themselves and back down. Perhaps the foreign agent wiretapping scheme outside of the Courts which the current administration tried and eventually backed down on is a good example. Had they not done so, we would be seeing hearings on it right now.

The latest two uproars, the Valerie Plame scandal and the Gonzalez Attorney scandal are good examples of, in the first case, a bit of a witch hunt, and in the second case, a fair inquisition.

Since plenty of bloggers are talking about what should be done and who is right, this blog will concentrate on some of the legal underpinnings (promise not to bore you to tears), which almost no one ever speaks about.

Today Gonzales, tomorrow Libby.

The argument is over whether President Bush should have fired 7 or 8 (depends who you count) United States Attorneys, possibly for political reasons.

The first important rule to know is that U.S. Attorneys are appointed and removed according to a federal act. Summarizing the act --

- - The President appoints U.S. Attorneys with the advice and consent of the Senate for four year terms.

-- The President can remove them on his own say so.

-- There is one for U.S. attorney for each judicial district in the United States (so, if you have heard there are 93, that's why).

-- Since the Senate has to approve the new one, the old one serves until the substitute comes in.

So, although the President needs the Senate to approve an appointment (under the Constitution too), he does not need approval to remove one (although he will need them to approve a new one). This is common with many political positions. Although now its done this way because of some federal act, the issue was fought out in the Supreme Court long ago, and at least in typical cases, the executive department won. It was a pragmatic decision, because the president can’t get a lot done if he doesn’t have the support of the people beneath him.

It is not uncommon practice for presidents to replace all U.S. Attorneys when they come into office just like they have an entire new cabinet. In Carter, Reagan and Clinton did. Bush 41 did not, but he was a Republican following a Republican, and did not really need to do so. In Bush 43’s case, I believe almost all of them were replaced.

This does not answer all questions as to whether what happened here was right because two issues still exist (1) whether the Attorney General, Alberto Gonzalez, or others in the administration, lied to Congress about the reason 8 U.S. Attorneys were let go (I, for one, will give him the benefit of the doubt until there is good reason to think differently) and as to whether it was done for the purposes of effecting ongoing investigations or prosecutions (which I see little evidence of, just a guess).

While it has become evident to some that the reasons were “political” it is not clear that Gonzalez was aware of the reasons for the firings (although, you would like to think the Attorney General would be aware of something so important), the waste of Congress’ time in discovering this possible untruth, when Gonzalez’ chief of staff has already resigned over it, is just not worth it.

What should be the result if you think these 7 or 8 should not have been replaced? It’s simple. If you don’t like Bush or his underlings, then vote for the Democrats next time. We have a system with regular elections for a reason. Every unpopular act should not be a reason for hearings, particularly in the middle of a war. It is a little sickening when Congress or the President gets caught up in some partisan squabble while dogs are seen in Baghdad carrying heads (well, at least on reporter saw it once -- but you get the point).

Almost everyone agrees, once the U.S. Attorney is in office, there should not be undue pressure to act politically. Republicans and Democrats seem to agree on this. The Senate just voted 94-2 to get rid of a loophole in the Patriot Act which lets the President appoint a new U.S. Attorney without Senate approval. If you ask me, that law was unconstitutional – Article 2, section 2 of the Constitution, sometimes called the advice and consent clause. It should pass the house just as easily, and I doubt Bush will veto it, because Congress would almost certainly have enough votes to override the veto.

The Democrats on the House Judiciary Committee has demanded the testimony under oath of Karl Rove and Harriet Miers to see the White House’s involvement in the scandal. Bush has already stated, in effect, over his dead body, claiming executive privilege. Usually, these disputes are worked out between the two departments without a lawsuit, such as when Condoleeza Rice’s testimony was sought during the 9/11 hearings. In retaliation, the Congress authorized subpoenas, and the president’s spokesman said if they issue subpoenas, the president’s offer to have Rove and Miers answer questions in a closed session, not under oath, will be withdrawn.

We way overdue presidential power in this country, and every administration gets away with overusing executive privilege, because they all want to use it when it suits their purposes.
The hypocrisy squads, are, as always, rushing to the front. Democrats and Bush haters are pointing out that “executive privilege” isn’t even in the Constitution and should only apply to situations where national security is at stake. The Republicans are claiming that the president has every right to raise it as otherwise advisors will be afraid to tell him what they think If you can recall all the way back to the Clinton era, they have now precisely reversed their claims. The amazing thing to me is that they do this without any shame, even in an age when their earlier statements are easily dredged up on the internet, as White House Spokesman, Tony Snow’s, 90’s rant against Clinton for claiming executive privilege was brought up today.

Some think that this issue might take quite a while to wind its way through the courts if it goes this way. Rush Limbaugh has suggested that it would be a good strategy for Bush. He should be reminded that it didn’t take very long when Nixon tried to use executive privilege during Watergate. In fact, it went like lightning.

This issue is not likely to go away unless Gonzales resigns, which would at least take the temperature down some. It might make it harder for the Democrats to use it as a springboard to go after Rove (which, let's face it, Democrats dream about). Gonzales shouldn’t have to resign over this unless it is shown he outright lied about his part in it, but it would help his boss, himself and his party if he does step aside. He may come to that conclusion himself, if he has not done so already.

I had a laugh today. Ted Olsen, an attorney from the Reagan and this Bush’s administration, was suggested as a good replacement for Gonzales. Democrats might miss the fact that Olsen is up there with the most conservative people in politics and an ardent advocate of the unitary executive theory that drives liberals berserk.

For all you disappointed Dems and libs, I come down quite differently on the Libby/Plame scandal, which should be taken much more seriously and thoroughly investigated. So, stay tuned until tomorrow.