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Gonzales Cantata: A moment of profound American shame gets set to music
Tim Treanor of DC Theatre Scene
November 2, 2020
Melissa Dunphy’s The Gonzales Cantata, which will begin its run on In Series’ website November 3, is an opera with a unique libretto – transcripts of the Senate Judiciary Committee’s hearings on Attorney General Alberto Gonzales’ December 7, 2006 decision to fire seven United States Attorneys. Though it may be strange to hear the words of the Hon. Orrin Hatch (R.-Utah) set to music, the story behind the hearings is stranger still.
Any understanding of this bizarre chapter in American history must begin with the understanding that the post of United States Attorney is a political position, and those who are appointed serve at the pleasure of the President. It is customary for every United States Attorney to offer a resignation at the beginning of a four-year Presidential term, and those offers are usually accepted.
So on its face, the decision to replace seven attorneys in political positions should not be controversial. But anyone with common sense recognizes that United States Attorneys occupy unusually sensitive positions. Like the ordinary at-will American employee, U.S. Attorneys can be fired for any reason – except the wrong reason, such as because of race, or because they are investigating wrongdoing by some political heavyweight.
The Bush Administration was already taking in water when news of the firings broke. The U.S. military campaigns in Iraq and Afghanistan were proceeding badly. The Administration’s response to Hurricane Katrina was catastrophically inept. News that the United States was torturing foreign prisoners – using legal justifications developed by Gonzales’ team when he was White House Counsel – was out, and Congress was not happy. The attacks of September 11, 2001 on the United States had permitted Bush to pursue his vision of a “unitary executive” – one who was largely unfettered by Congress. By December of 2006, when we learned of the firings, Congress was prepared to put some fetters in place.
Still, there was a case to be made for the firings. For example, Kevin V. Ryan, U.S. Attorney for the Northern District of California, was the subject of some extremely negative evaluations from experienced trial attorneys who had resigned from the office during his tenure. The U.S. Attorney for New Mexico, David Iglesias, was fired largely for his unwillingness to seek an indictment against State Senator Manny Aragon, a Democrat, on fraud and conspiracy charges. Aragon eventually pled guilty to three felony fraud counts. Margaret Chiara, U.S. Attorney for the Western District of Michigan, ran an office notorious for palace intrigue, although it is unclear what responsibility she bore for it. Arizona U.S. Attorney Paul Charlton had several policy differences with the Department of Justice, including whether witness interviews on Native American reservations should be recorded and whether he should seek the death penalty in specific criminal cases.
But although the Justice Department made some early attempts to explain the firings on the merits, it soon became apparent that the process by which the Department arrived at its decision was irredeemably corrupted. Gonzales himself was a devastatingly bad witness on his own behalf.
Documents released subsequent to the firings show that the action was under contemplation nearly two years before they took place – and that at the epicenter of the firings was the political maven Karl Rove. Colin Newman, a staffer in the White House Counsel’s office (then headed by Gonzales) wrote an e-mail in which he said “Karl Rove stopped by to ask you (roughly quoting) ‘how we planned to proceed regarding U.S. Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them or selectively replace them, etc.'” The e-mail eventually found its way into the inbox of Kyle Sampson, chief of staff to Attorney General John Ashcroft. A few weeks later Sampson had a new boss – Alberto Gonzales.
In a Los Angeles Times article which came out about four months after the firings, David Serrano described what happened next:
“D. Kyle Sampson, chief of staff to Atty. Gen. Alberto R. Gonzales, came up with a checklist. He rated each of the prosecutors with criteria that appeared to value political allegiance as much as job performance.
“He recommended retaining ‘strong U.S. attorneys who have … exhibited loyalty to the president and attorney general.’ He suggested ‘removing weak U.S. attorneys who have … chafed against administration initiatives.’”
This revelation threw considerable shade on White House Press Secretary Tony Snow’s previous assertion that the removal was the idea of Harriet Miers, Gonzales’ beleaguered successor as White House Counsel. According to Snow, Miers had wanted to remove all 93 U.S. Attorneys, but the Justice Department had rejected her idea. Bush had once, briefly and catastrophically, proposed Miers for the Supreme Court seat now held by Samuel Alito, but by the end of January 2007 she herself had been removed.
Gonzales delegated the task of identifying the US Attorneys to get the ax to Sampson and Monica Goodling. Goodling was a curious choice. She was a 1999 graduate of Regent University (f/k/a Christian Broadcasting Network University) School of Law, and had never actually worked as a lawyer. She worked as an RNC opposition researcher in 2000, and then joined the Justice Department’s press office. From there, she joined DoJ’s Executive Office, which reviews personnel matters among its many functions. Eventually, she became the White House liaison. (She now works for a public relations firm).
Notwithstanding Sampson’s recommendation, the removed attorneys were neither weak nor opponents of Bush or DoJ initiatives. For example, Carol Lam, the U.S. Attorney for the Southern District of California, was a recognized expert in prosecuting healthcare fraud and secured an indictment against Alvardo Hospital Medical Center and its owner, Tenet Healthcare Corporation, for kickbacks. Tenet eventually settled by paying $21 million and selling the hospital. The Bush Administration, citing some Republican Members of Congress, accused Lam of not enforcing immigration restrictions, but in fact she secured a significant conviction against the Golden State Fence Company for hiring illegal immigrants – ironically, to build fencing across the U.S.-Mexican border. (One of her accusers was Congressman Randy “Duke” Cunningham, later convicted of accepting bribes for securing Federal contracts). Lam is now Senior Vice-President and Deputy General Counsel for Qualcomm, and has been mentioned for vacancies on the Supreme Court in a Democratic Administration.
Several of the other Gonzales firings were similarly inexplicable. Gonzales had no explanation for the firing of Nevada U.S. Attorney Daniel Bogden. The firing enraged Republican Senator John Ensign of Nevada, who said “I’m calling on the President of the United States and the attorney general to restore Dan Bogden’s reputation….Everyone in Nevada thought Dan had done a superb job….I believe a very good man was wronged and a process was flawed.” At the time of his firing, Bogden was investigating Nevada’s Republican governor for bribery. Eventually, President Obama reappointed him to the position, and he served for eight additional years.
John McKay, U.S. Attorney for the Western District of Washington, had successfully prosecuted terrorist Ahmed Ressam and developed, at the request of DoJ, a nationwide law enforcement computer system. According to Sampson, his dismissal came about in part because he pressed a more aggressive investigation into the murder of Assistant U.S. Attorney Thomas C. Wales. However, Gonzales had previously promised Wales’ family that his murder investigation would receive “top priority”. The real reason McKay was fired may have been his refusal to convene a Grand Jury to investigate allegations of voter fraud in the 2004 gubernatorial race, which a Democrat had won. McKay is now a partner in a Seattle law firm and a member of the law school faculty at Seattle University.
Goodling, who exercised such an outsize influence on the firing of these attorneys, was of no help to the Justice Department during the Senate hearings. At first, she refused to appear, citing her 5th-Amendment right against self-incrimination. Granted immunity, she said, “I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions. And I regret those mistakes.”
Gonzales’ defense of the firings was almost – excuse the term – operatically inept. He largely attempted to evade responsibility for the Department’s actions, professing ignorance about some key events and having no memory about others. Gonzales’ efforts were hampered because in roughly the same time frame, he was trying to defend the Administration’s torture policies. In that effort, he made some mind-boggling claims – including, in an astonishing exchange with Sen. Arlen Specter (R.-Pa.), that the Constitution does not guarantee the right of habeas corpus. Article one, section 9, says that the right of habeas corpus will not be suspended except in cases of war or invasion, Gonzales conceded, but nowhere does it say that the right exists in the first place.
On August 26, 2007, Gonzales announced his resignation. Subsequent investigations by the Inspector General and a Special Prosecutor were critical of the way that Gonzales ran the Department, but did not recommend criminal proceedings.
One of the reasons the Department of Justice was brought so quickly to account – and The Gonzales Cantata makes this clear – is that Republican Senators had no tolerance for Gonzales’ conduct, and that of his associates. Specter, Hatch (who, by coincidence, has an excellent singing voice in real life) and Sen. Charles Grassley (R.-Iowa) are unyielding in cross-examining Gonzales, as are Senators Diane Feinstein (D. -Cal), Ben Cardin (D.-Md.) and Committee Chair Patrick Leahy (D.-Vt).
It is unclear whether our current Senate would be capable of such bipartisan outrage at what was clearly an abuse of power. Notably, our current Chief Executive has complained bitterly that the Director of the Federal Bureau of Investigation has not charged, and the Attorney General has not indicted, his political enemies. If their replacements return such indictments, will both parties have an interest in challenging their propriety?
The stakes have been raised because Trump has recently signed an Executive Order which would transform two hundred thousand high-ranking civil service positions into the excepted service – so that civil servants in positions like, for example, Dr. Fauci’s could be removed without cause. If that happens, there are not enough operas in the world to do the ensuing calamity justice.