The Other Bush Legacy.

Not lawlessness, exactly, but a certain carelessness about the rule of law that frequently amounts to the same thing.

The last week has not been kind to Attorney General Gonzales or his department, but I can’t say I have been surprised. In fact, as Andrew Cohen wrote in the Washington Post, there were good reasons from the start to see that in Gonzales we were getting exactly what we now know we got. Cohen set forth his case against Mr. Gonzales in three parts, the second and third of which struck me as a good example of how to overplay a good hand. Part four then makes the attention-getting suggestion that after firing Gonzales, President Bush should appoint Patrick Fitzgerald as the new A.G. James Comey gets honorable mention.

Is the question of a successor on the table? CBS News is reporting that “sources” say it’s only a matter of time before Gonzales is fired. My guess is that the CBS report makes it substantially less likely to happen, but it’s hard to imagine how Gonzales can function effectively for the rest of the President’s term.

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4 Responses to “The Other Bush Legacy.”

  1. David Fitzgerald Says:

    Man for All Seasons
    When a man takes an oath, Meg, he’s holding his ownself in his own hands. Like water. And if he opens his fingers then – he needn’t hope to find himself again.

    Margaret: “Father, the man is bad.”
    More: “There’s no law against that.”
    Roper: “There is a law against it. God’s law.”
    More: “Then God can arrest him.”
    Roper: “Sophistication upon sophistication!”
    More: “No. Sheer simplicity. The law, Roper, the law. I know what’s legal, but I don’t always know what’s right. And I’m sticking with what’s legal.
    Roper: “Then you set man’s law against God’s?”
    More: “No. Far below. But let me draw your attention to a fact. I am not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, there I am a forester. I doubt if there’s a man alive who could follow me there, thank God.”
    Alice: “While you talk, he is gone.”
    More: “And go he should, if he was the Devil himself, until he broke the law.”
    Roper: “So now you’d give the Devil the benefit of law!”
    More: “Yes. What would you do? Cut a great road through the law to get to the Devil?”
    Roper: “I’d cut down every law in England to do that!”
    More: “Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat. This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of the law, for my own safety’s sake.”

    Every lawyer, and especially those who work in the justice department, should have to certify that he reads this every morning before work!

  2. Mark E. Says:

    While channel surfing on a recent Saturday, I watched part of “A Man for All Seasons” on television. Although this speech is somewhat abbreviated in the screenplay, I was struck by the power of it. Particularly I was struck by the relevance to the fashion of to discard centuries of legal precedent for expedience in the “war against terrorism.”

    I think, maybe, that one should be careful though, quoting this. It is somewhat contradictory when considered in the context of the rest of the play. Although in this speech, More emphatically defends the law of man, he later resigns himself (at least in the play) to his fate as a martyr by acknowledging the trump card of God’s law.

    That said, I don’t disagree with the sentiment of the scene at all,

  3. David Fitzgerald Says:

    Mark E. First, thank you for your comment. There is a point in it though that I think calls for further clarification, if only because it reveals the mindset of current lawyers in high places both within the White House, and most shockingly, the Justice Department.

    As a historical matter, Thomas More was charged by King Henry with treason because he refused to swear to an oath accepting Anne Bolyn as queen and King Henry as supreme head of the Church in England. The case was investigated and prosecuted by Thomas Cromwell on behalf of the King. More’s defense was not, as is widely believed, that his position on the marriage of King Henry and the English Reformation generally was morally or theologically correct. To the contrary, More argued throughout his imprisonment and trial that he had never publicly taken a position on the King’s marriage at all. As such, he could not be convicted of treason because silence was not a treasonable act and, if anything, under English common law, if one remained silent when presented with a proposition one could be presumed to consent to that proposition.

    Why the trip into a 500 year old case? The history is illustrative because More’s defense was not heroic at all. Rather, it was highly technical and legalistic. Whatever More’s conscience told him about the theology of the King’s position, he was not defending that conscientious principle. Rather, what he was defending was the rule of law as it had been interpreted by English courts since the Conquest (a time as far removed from More as we are from him). He also believed, I think, that such a defense was the best legal defense he could mount because it was so soundly rooted in the principles of English law. More did, in short ,what good lawyers do, he applied the law as he knew it to be to the facts at hand and argued a position based in law. That’s why he is the patron saint of lawyers.

    It was only after his sham trial and conviction, when he knew his head would roll, that he took off his lawyers cap and put on the cap of a matyr. Rather than recant, he went to the chopping block denouncing the King’s marriage and arguing that the King could not be the head of the English Church based on both the law of God AND the settled law of the realm.

    The point (and the irony perhaps) of all this is that law is inherently a conservative profession. Lawyers, by breed, have very little confidence in their and other’s judgment. As such, they often subsume their own convictions to the dictates of settled legal principles and procedures in the confidence that those principles and procedures have stood the test of time and are far more likely to yield just results then spur of the moment justifications based on current exigency. Even a “crusading” lawyer like Thurgood Marshall had the lawyer’s humility. He spent years litigating the principles upon which Brown v. Board of Education was based, winning some and losing some, before he ever took desegregation before the Supreme Court. This was in part a sound strategy, but also, I think, it reveals that Marshall understood that the only way for his moral convictions to have lasting “rootedness” in American law was to plant them in a way that the “field” of American law could accept.

    All of this is illustrative of the damage lawyers like Hariett Myers and Alberto Gonzalez are reeking across the American legal system and to America’s prestige and standing abroad. They work for the first “CEO” President. That also is illustrative. Bad CEO’s (and our current President was nothing if not that) have no patience for their own lawyers. They fail to appreciate process. As such, they encourage their lawyers to cut corners to get to the result they “know in their heart” is “right.” Bad lawyers accomodate this. In the name of advocacy, they work to undermine legal principal in order to adavnce the client’s “good” or “vision”.

    When lawyers for CEOs do this, shareholders loose money. When the Attorney General of the United States does it, the whole notion of Liberty IN LAW is undermined.
    The basis for America’s standing in the world has been things like, zealous respect for habeus corpus, the indepence of the judiciary and the prosecutorial function, the adherence to internationl treaties duly ratified as the supreme law of the land and their enforcement by the independent judiciary and the sanctity of the attorney-client relationship. These things are ignored at our peril because it is upon such “technicalities” that American democracy and “empire” is based. Peril we have certainly found.

  4. Mark Esswein Says:

    Thank you, David, for the clarification. You explained fully what I only alluded to in my warning. I realized after I posted it, that “seemingly contradictory” would have been a better way of phrasing it. My point was that “seeming contradictions” are the fuel for much hot air in this town (DC) and as you point out, reality is More complex (pun intended.)

    BTW – I am not a lawyer – they do pay my salary though.


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