Don't get me wrong—there's plenty to mock in Attorney General Alberto Gonzales's "testimony" before the Senate Judiciary Committee today. But is it just possible that the notoriously unqualified Gonzales has done the Constitution a favor today by, perhaps accidentally, telling the truth about something?
More after the jump!
Consider this transcript segment, as highlighted earlier by Devilstower:
Gonzales: Senator, obviously there was concern about General Ashcroft's condition. And we would not have sought nor did we intend to get any approval from General Ashcroft if in fact he wasn't fully competent to make that decision. But General -- there are no rules governing whether or not General Ashcroft can decide, I'm feeling well enough to make this decision.
Specter: But, Attorney General Gonzales, he had already given up his authority as attorney general ... was no longer attorney general.
Gonzales: And he could always reclaim that. There are no rules...
Specter: While he's in the hospital under sedation?
Gonzales: Again, we didn't know—we knew, of course, that he was ill, that he'd had surgery…
Devilstower took "There are no rules" as a summary of the Bush administration. But I winced some at this, because (and it pains me to say this) there's a chance Gonzales was telling the truth.
When John Ashcroft temporarily stepped aside as Attorney General of the United States to undergo surgery, you might be imagining some kind of clear and unambiguous process like that for presidential succession as outlined in the 25th Amendment to the Constitution. You know—an exact procedure to follow, a way for outsiders to determine if the Attorney General (or any cabinet-level officer, really) is unable to "discharge the powers and duties of his office," an explanation of how the Attorney General can resume his office, and so on.
Nope. We get 28 USC 508:
(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.
(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.
Dammit, Gonzales is right—there are no rules. It doesn't even say that the Deputy Attorney General shall assume the duties of the Attorney General in case of the latter's disability, only that he may. It doesn't give anyone but the AG himself the power to declare himself disabled or unable to perform his duties, nor does it give anyone any way to dispute the AG's own judgment that he can return to duty after a period of disability.
It's probably so wishy-washy because the discussion of "disability" is paired with that of "absence," which could mean anything from "out of the office" to "out of the country." You don't want a cabal of deputy attorneys general getting together and holding a coup when their boss makes a publicity trip to the upper midwest.
Unfortunately, this makes Gonzales's statement true—even though Ashcroft had transferred his powers to James Comey, Ashcroft could take them back at any time, for any reason. The Bush administration was obviously desperate for the fig leaf of "Justice Department approval" for whatever program Gonzales now claims he was talking about, and there was nothing to stop John Ashcroft from granting it even while sedated. As every four-year old knows, "He can't say 'yes' if you don't ask him."
Sen. Specter, among others, was obviously offended by this idea, but that doesn't mean it was illegal—just skanky. But having pointed this out before the Senate in the highest-profile way possible, it's just possible that Alberto Gonzales has given Congress the impetus they need to fix this.
This situation pretty clearly calls for a clear, unambiguous law describing how cabinet officials (or maybe any executive branch officer confirmed by the Senate) can step down for disability or other personal reasons, and then reclaim office when capable of discharging its duties. If the law had said that Ashcroft could not discharge his duties as Attorney General until he signed a letter signifying his ability to do so, then Gonzales and Andrew Card couldn't have gotten anything from him unless they pressured him to fully resume his office.
Ideally, the law would also include a 25th Amendment-style provision where a group of other executive officers could sign a letter certifying that another cabinet officer was not capable of discharging his duties and thereby invoke the rule without his consent, or prevent him from resuming his office if they believed he was not capable of doing so.
I'm using male pronouns instead of "his or her," but obviously, like the 25th Amendment, I mean both sexes. In fact, the Republicans would have been quite happy to enact such legislation while Janet Reno was Attorney General. They could have, too—then, like now, the Congress and the White House were controlled by different political parties, and I think that's the only time when legislation like this can pass. I'd like to think that leaders of either party would willingly accept commonsense limits if they controlled both the executive and legislative branches, but I know one party wouldn't and I'm not optimistic about the other.
So now the iron is hot—will Congress be smart enough to strike and create a party-neutral, clear, unambiguous way for cabinet-level officers to step aside for disability such that everyone knows exactly what has to happen before they can resume their duties? The 25th Amendment is a pretty decent model, having been used for just the third time ever within the past week, so it's not like they'd have to start from scratch—and in situations like this, I think both Congress and the executive branch could use a clearer understanding of what is and is not allowed.
If Gonzales is right and "there are no rules," will Congress take the chance to make some?