The Common Law of Scandal: Why Attorney General Gonzales Should Not Resign

As scandals go, the legal firing of eight U.S. attorneys is really minor-league stuff, an exercise in reverse patronage that indicts the Bush administration's political finesse, not its ethics. President Clinton knew how to handle such matters: Act quickly, assert the full power of the president to control the executive branch and refuse to apologize for the division of authority put in place by the framers. A little Jacksonian contempt for the other branches is often useful inside the Beltway.

When the Bushies did not act that way -- and looked like the kid with the cookie jar -- Sen. Chuck Schumer, D-N.Y., instantly saw an opening and headed for it. The relentlessness of the Schumer attack machine makes charges about Karl Rove's tendency to polarize seem pale in comparison. I've written before that Schumer is the new Nixon, and not just in the spooky physical resemblance, but in Nixon's dedication to full-contact politics. "Game on" is Schumer's way, and the sooner every GOPer figures that out, the better off the party will be.

When President Bush declared flatly on Tuesday night that he would reject all subpoenas directed at his White House aides, he finally took the step that turned the tide. The Senate and House subpoenas will be refused, and one side or the other will put them before a district court in the District of Columbia. From there a decision will be appealed to the D.C. circuit, and perhaps on to the United States Supreme Court. The president will win.

(Consider the precedent that a decision empowering the Senate or House to call any White House aide for any reason would have on the management of the executive branch. Not only would scores of people simply refuse to serve, those foolhardy enough to trust in the good graces of the Democrats would be under oath and subject to jumped-up perjury prosecutions after every mandatory trip to the Hill.)

There's a sort of common law of scandal in D.C., a history of pratfalls and crimes, blunders and buffoonery that has accumulated over the decades. At the summit of this sorry list of foibles are the Watergate crimes and Clinton's lies under oath -- the impeachable offenses category. Short of that zenith we have scores of examples, from Sherman Adam's coat to Jack Kennedy's girlfriends. Some were investigated and led to resignation. Others were accommodated and led to winks. It isn't that human behavior has changed in D.C. much in the modern era (or even in the 18th and early 19th century -- ask Aaron Burr about Alexander Hamilton) just the standards applied by the Mainstream Media.

Hugh Hewitt is host of the nationally syndicated "Hugh Hewitt" show and author of "A Mormon in the White House? Ten Things Every American Should Know About Mitt Romney." He blogs at hughhewitt.com

But the MSM doesn't get to move the goal posts just because Chuck Schumer wants them to. They can huff and puff, but the bottom line remains that the president through the attorney general can fire every single U.S. attorney. He can fire the next batch as well, and the one after that if he wants to. This is the established -- by the Supreme Court -- right of removal, and as the law is settled, there is no criminal aspect here, and not even a political scandal. Just Democrats and a few weak-kneed Republicans enjoying a few easy news cycles.

It is true that the attorney general can give up any hopes he might have had about joining the nine if one justice or another retires in June or July. Any nominee would almost certainly have to come from the Senate to make it through the Senate. It may even be the case that the attorney general couldn't secure confirmation for a circuit court appointment now, but perhaps he wasn't interested in one anyway.

But among this president's key traits is loyalty down in response to loyalty up. He won't be tossing Alberto Gonzales under the bus because of inelegant handling of a set of political firings. To do so would be to invite more of the same from Democrats. "That which gets rewarded gets repeated," is how UCLA law professor Eugene Volokh put it Tuesday, and that's a golden rule of Washington if ever I heard one. Lower the bar for "scandal," and you will get more "scandals," not fewer.

No senior official -- either Democrat or Republican -- has ever been forced out over such a nonissue. Gonzales should not be the first.

Hugh Hewitt is host of the nationally syndicated "Hugh Hewitt" show and author of "A Mormon in the White House? Ten Things Every American Should Know About Mitt Romney." He blogs at hughhewitt.com

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