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Whitewater drowned Clinton. Iran-Contra clipped Reagan. And Watergate slammed Nixon. In two decades, presidential second terms haven’t escaped a major scandal. Last week, the newly re-elected President George W. Bush picked his new attorney general, the man who would be entrusted to investigate any second-term administration misdeeds. Alberto Gonzales, however, seems to have been chosen more for his closeness to the president than for anything else. The current White House counsel has no law enforcement experience. Asked to describe the 49-year-old Gonzales, one former Bush administration official said simply, “His most important quality is his complete loyalty to the president. That is his primary characteristic. Everything he does is informed by this loyalty.” That loyalty, however, could have drawbacks. If he is confirmed as attorney general, Gonzales may be called on to oversee investigations into members of his own administration, an awkward task for a famously dedicated aide. The Justice Department is already embroiled in several politically charged investigations, including a probe into the leak of a Central Intelligence Agency operative’s name and an inquiry into alleged fraud at the Halliburton Corp., the energy giant formerly headed by Vice President Dick Cheney. Gonzales’ close relationship with the president could compromise the Justice Department’s ability to be seen as fair and impartial. In addition, questions surrounding the role of the White House � and Gonzales � in authorizing harsh treatment of prisoners in the war on terror will persist. Not surprisingly, those who believe the Justice Department should operate at arm’s length from the president view Gonzales with suspicion. “The White House counsel is supposed to be a close personal adviser to the president. The attorney general is not,” says Elliot Mincberg, general counsel for People for the American Way, a liberal interest group. Legal experts say the demise of the independent counsel statute in 1999 heightens the potential for conflicts by eliminating an avenue for criminal investigations outside the control of the attorney general. With Republicans also in control of the legislative branch, it is unlikely that Congress will step in to provide vigorous oversight. Also, The New York Times reported last week that the appointment of Gonzales may be a prelude to his ultimate nomination to the Supreme Court. That possibility could make him think twice before alienating the White House. “I think there could be serious appearance problems,” says Charles Tiefer, a professor at the University of Baltimore School of Law. “If there is a question of a potential crime at the White House, it’s going to be a personal call by Gonzales.” Under the current setup, cases that present conflicts of interest are handed over to a special prosecutor chosen by and answerable to the attorney general, instead of being handled by an outside lawyer named by federal judges, as the independent counsel statute required. Because the special prosecutor is an executive branch employee, the investigation is susceptible to political pressure and manipulation, as evidenced when President Richard Nixon ordered then-Attorney General Elliot Richardson to fire special counsel Archibald Cox. Although Richardson resigned rather than comply, Cox was ultimately fired by Solicitor General Robert Bork in the infamous October 1973 Saturday Night Massacre in the early days of the Watergate scandal. The friendship between Bush and Gonzales goes back a decade, to 1995, when Bush was serving as Texas governor and Gonzales provided him with legal advice. In 1997, Bush named Gonzales Texas secretary of state, and the next year, he appointed Gonzales to the Texas Supreme Court. In 2000, Bush brought Gonzales with him to Washington, and Gonzales has been the president’s top lawyer ever since. Supporters say Gonzales’ personal relationship with the president is no cause for concern. Former Associate White House Counsel Bradford Berenson says he doesn’t believe Gonzales would let partisan political calculations impact a criminal investigation. “If there is one thing the White House counsel learns in his job, it’s where the line of propriety is,” says Berenson, a partner in the D.C. office of Sidley Austin Brown & Wood. Among those considered candidates for the soon-to-be vacant White House counsel post are current deputy David Leitch, a former partner at D.C.’s Hogan & Hartson; White House aide Brett Kavanaugh, a pending nominee to the U.S. Court of Appeals for the D.C. Circuit; and Associate Attorney General Robert McCallum, who attended Yale University with Bush. CLOSE TIES Gonzales is hardly the first attorney general pick to have close ties to the president. John F. Kennedy famously selected his brother and campaign manager, Robert Kennedy, for the post in 1961. When Nixon was elected in 1968, he installed his campaign manager and confidant, John Mitchell. Mitchell resigned as attorney general in 1972 to head the infamous Committee to Re-Elect the President, which orchestrated the Watergate break-in. He ultimately served 19 months in a federal penitentiary for his role in its cover-up. In the aftermath of Watergate, Congress passed a series of reforms to prevent similar scandals, including the independent counsel statute. But a newfound desire for clean government did not end the tradition of presidents appointing close confidants to head the Justice Department. Ronald Reagan tapped his personal attorney, William French Smith, to run the department during his first term and selected White House lawyer and longtime aide Edwin Meese III to serve as AG for his second term. Meese narrowly survived two independent counsel investigations and was drummed out of office amid scandal in 1988. But despite his close relationship with Reagan, Meese made the call to trigger an independent counsel investigation into the Iran-Contra affair. Meese, now a scholar at the Heritage Foundation, did not return a call seeking comment. Following Meese’s resignation, Reagan nominated former Pennsylvania Gov. Richard Thornburgh to serve as attorney general. Thornburgh was kept on by President George H.W. Bush and was widely credited with restoring order and integrity to the Justice Department. “At certain times in history, there has been a demand for impeccable credentials. Other times, it’s remarkable how often someone becomes attorney general on the basis of a personal relationship with the president,” says Louis Fisher, a senior specialist in separation of powers with the Congressional Research Service. President Bill Clinton also selected someone for the AG post with whom he had no personal ties: Janet Reno, a no-nonsense Florida prosecutor. It was a decision that would have major consequences for his two-term presidency. In May 1994, Reno sought the appointment of an independent counsel to investigate the Clintons’ involvement in a suspect Arkansas land deal. The probe was later handed off to former Solicitor General and D.C. Circuit Judge Kenneth Starr and expanded into a sprawling and largely unchecked investigation that ultimately led to an impeachment trial in the Senate. In his autobiography, My Life, Clinton calls his decision to support Reno’s call for an independent counsel � against the advice of his personal lawyers � “the worst presidential decision I ever made.” “Attorney General Reno was not in any way, shape, or form a member of the Clinton team,” says Larry Sabato, director of the University of Virginia’s Center for Politics. “She was totally unresponsive in many cases to the desires of the president and his inner circle. The Clinton people almost felt they were dealing with an antagonistic alien force within their own administration.” Says Beth Nolan, who was White House counsel under Clinton: “I think President Clinton picked Janet Reno because she was known to be tough, fair-minded, and independent. That’s what he picked and that’s what he got.” RAISING THE PROFILE Gonzales’ nomination came one day after Attorney General John Ashcroft publicly indicated that he would step down. Ashcroft was a polarizing member of the Bush Cabinet, but unlike Gonzales, he was not perceived as beholden to the president. Instead, Ashcroft � a former Missouri senator � was treated as an outsider. During his tenure, concerns raised by the Justice Department were often overshadowed by Pentagon priorities. For instance, Ashcroft privately opposed a Pentagon policy denying counsel indefinitely to U.S. citizens who were held as enemy combatants, but failed to persuade the White House to adopt a more tempered position. Gonzales’ access to the president may make him a stronger advocate for the institutional interests of the Justice Department than Ashcroft. D.C. lawyer Bruce Fein, who held Justice Department posts during three presidential administrations, says that would be a good thing. “The problem with the last attorneys general is that they were basically frozen out of critical decisions,” Fein says. “You’ve got to have that level of trust, otherwise the attorney general isn’t there to influence major decisions.” But to critics inflamed by the administration’s positions on issues related to the war on terror, there has never been a greater need for independence and impartiality at the Justice Department. Questions about Gonzales’ role in crafting policies for the detention and interrogation of prisoners are likely to dominate Gonzales’ confirmation hearings. In January 2002, Gonzales wrote a memo calling provisions of the Geneva Conventions “quaint” and recommending that the conventions not be applied to captured Taliban and al Qaeda members. Gonzales also requested a legal opinion from the Justice Department’s Office of Legal Counsel that seemed to condone the use of torture. Critics say the internal memos contributed to a lawless culture that led to the abuse of prisoners at Abu Ghraib and illustrate the president’s need for independent legal advice. “We just had an example with the legal opinions on harsh treatment of detainees of how the president might be better served by counsel that made him aware of the consequences and downsides of a position that initially looks politically convenient,” says the University of Baltimore’s Tiefer. As a Cabinet member, the attorney general should be responsive to the wishes and priorities of the president. “The real question,” says professor Akhil Reed Amar of Yale University Law School, “is whether we should try to develop a tradition that this office should go to someone who has a certain autonomy and distance.”

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