There is much about the current controversy over Attorney General Alberto Gonzales that would have perplexed the framers. Perhaps the most surprising would have been the relative passivity of Congress in the face of allegations of crimes by the nation’s chief law enforcement officer.
Long before the advent of special prosecutors and blue ribbon commissions, the framers created a system designed precisely for this type of situation: impeachment.
Article II, Section 4 of the Constitution expressly allows for the impeachment and conviction of any “civil officers” guilty of “high Crimes and Misdemeanors.” It is not necessary that such offenses be actual crimes for impeachment. James Madison described many acts of negligence that would be grounds for impeachment, including notably the “wanton removal of meritorious officers.”
The only Cabinet officer to be impeached was William Belknap, a former secretary of War who was charged with accepting bribes for contracts associated with the Indian Territory. The 1878 impeachment made it all the way to the Senate despite the fact that Belknap was no longer in office. While only three Senators believed him to be innocent, he narrowly escaped conviction on jurisdictional grounds by resigning from office. Belknap is buried at Arlington National Cemetery, ultimately succumbing to a “stroke of apoplexy” not long after his impeachment.
The impeachment of Cabinet officers has proved largely unnecessary because most officers gracefully have withdrawn or, when necessary, presidents have encouraged them to attend to “family matters.”
Not only has Congress given ample time and opportunity for Gonzales to step aside, it has withheld action despite highly compelling allegations of criminal conduct. On its face, the current record likely would satisfy most grand juries as sufficient to indict on at least some of the allegations. Indeed, many of Gonzales’ defenses to allegations of false statements routinely are raised by defendants in past cases — and uniformly rejected by his own department in cases such as the Scooter Libby prosecution.
This is not to say that Gonzales does not have valid defenses to make. The point of the House investigation is to determine whether impeachment is warranted, and there is ample record to justify such an inquiry. Consider just a few of the more compelling potential articles for impeachment:
Article One: Violations of Federal Criminal Provisions on Warrantless Surveillance. The National Security Agency program implemented by the Bush administration clearly and unambiguously violated the Fourth Amendment as well as federal law, which defines such warrantless surveillance as a federal crime. Yet this article could prove embarrassing to some Democratic Members who secretly were informed of the unlawful program. Moreover, the person most responsible for these crimes is the president and Democratic leaders repeatedly have stated that they will not consider any impeachment of President Bush.
Article Two: Obstruction and Misleading of Congress in the Course of Its Oversight Responsibilities. Gonzales has demonstrated a clear record of misleading Congress in its effort to investigate violations of the Constitution and international law. Examples of such conduct are numerous. For example, in his January 2005 confirmation hearing, Gonzales was asked by Sen. Russ Feingold (D-Wis.) whether the president could lawfully “authorize warrantless searches of Americans’ homes and wiretaps of their conversations.” Gonzales publicly dismissed the suggestion as merely a “hypothetical situation” when he knew the president had done precisely that for more than three years. Likewise, in April 2005, Gonzales told Congress that “there has not been one verified case of civil liberties abuse” under the USA PATRIOT Act. It was disclosed later that Gonzales had received various reports of precisely such violations, including one shortly before the hearing.
Article Three: Perjury — January 2005. The January 2005 statement constitutes an actionable allegation of perjury given the context. We have learned since then that Gonzales was deeply involved in the program as well as efforts to overcome internal critics of the program from Acting Attorney General James Comey to FBI Director Robert Mueller.
Article Four: Perjury — April 2005. Gonzales’ statement in April 2005 also is a valid basis for articles of impeachment. At the time of the statement, Gonzales was aware that many Americans opposed the act as relying too heavily on self-monitoring and self- control by the Justice Department. Finally, he was presumably aware that violations were found by internal monitors since he received various reports of those violations and those reports were directly relevant to his testimony.
Article Five: Perjury — February 2006. In a February 2006 hearing, Gonzales testified that “there has not been any serious disagreement about the [program].” In fact, we have learned that there was considerable opposition to the program that prompted the extraordinary confrontation at the sickbed of former Attorney General John Ashcroft. Indeed, it is now known that a March 10, 2004, meeting with Congressional leaders was called to inform them of such opposition and the possible need for legislation.
Article Six: Perjury — March-April 2007. On March 13, Gonzales publicly stated that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with regard to the firing of eight U.S. attorneys. Then, on April 19, he repeated this position to Congress and explained that “I haven’t talked to witnesses because … I haven’t wanted to interfere with this investigation.” These statements appear to be patently false. One of the central figures in the scandal, former Gonzales aide Monica Goodling, testified that Gonzales did question her about her recollection of the facts. Notably, she had gone to Gonzales to ask for a favor: to transfer out the office. Gonzales used this time, when Goodling most needed his intervention, to ask her about her recollection of events — questioning that Goodling stated made her feel “uncomfortable” at the time.
Article Seven: Perjury — July 2007. Most recently, Gonzales testified that a critical confrontation at Ashcroft’s hospital bed “was not about the terrorist surveillance program that the president confirmed.” He was asked about this incident given his prior statements that there was no serious disagreement over the domestic surveillance program. Gonzales’ statement has been directly contradicted by other testimony, most notably that of FBI Director Mueller.
However painful or costly such proceedings might prove, there are far greater costs in ignoring such conduct. Congress cannot continue to call on others to address this controversy. The framers gave Congress the authority to act in the face of defiant contempt or misconduct by civil officers. It should now act as the framers envisioned: fairly but firmly with the initiation of impeachment proceedings.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School.