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The reality is that cabinet officers who embarrass their country, their president and themselves usually resign or are fired. No creative thinking needed. But Attorney General Alberto Gonzales’ primary qualification for the job was his blind loyalty to President Bush, and the president is now reciprocating by ignoring reality and keeping him on. It’s time to think outside the box, to look for creative options. The disconnect could not have been more dramatic. As one senator after another, from both parties, confirmed that Gonzales had only hurt himself more by his terrible performance before the Senate Judiciary Committee and called for his resignation, the White House called him “fantastic.” As morale within the U.S. Department of Justice (DOJ) continued to plummet, and legal experts from all sides agreed that Gonzales has been a disaster, the White House touted him as “our No. 1 crime fighter.” Gonzales was equally oblivious. He testified that, “The moment I believe I can no longer be effective, I will resign.” But that moment passed him by some time ago. Exploring the options There is widespread agreement, both publicly and privately, that Gonzales must go. But about the only two people in Washington who strongly disagree are the two who would normally make this happen: Gonzales and Bush. If the country is to move forward, and if we are to avoid additional damage to the important work of DOJ, other players must explore other options. Here are some of them. • No confidence. Congress can express itself by way of resolution or other means. A vote of “no confidence” in the attorney general, particularly if it were more than just along party lines, would certainly have a strong impact. As reported in Roll Call on April 24, Senate Democratic leaders are considering bringing such a resolution to the floor. • Impeachment. We think of impeachment as being reserved for presidents and judges. But Article II, Section 4 of the U.S. Constitution also provides for impeachment of “all civil Officers.” The attorney general would clearly be included. The process is long and laborious: The House votes articles of impeachment and the Senate conducts a trial, but one hopes that somewhere along the line, the message would sink in and he would go. Whether Gonzales’ mismanagement, mis�statements and other missteps rise to the requisite level of “High Crimes and Misdemeanors” may not yet be clear, but, as we saw with the Clinton impeachment, that is not a hard and fast standard. • Unconfirm. Under the Constitution, the president can appoint high government officials only “by and with the Advice and Consent of the Senate.” On Feb. 3, 2005, Gonzales was confirmed by the Senate, 60-36. Does that important role evaporate the moment someone is initially confirmed? Congress regularly finds ways to reverse course: Laws get vacated or amended, appropriations deleted or changed. It could find a way to do so here: to reject or vacate the confirmation. It is, of course, unclear what the legal effect of such an unprecedented vote would be. But the political impact would be clear. Bush is stubborn but not crazy: An attorney general disgraced by the Senate in this way could not last long. • The professionals. Gonzales criticized some of the fired prosecutors for “poor management,” for losing the confidence of career prosecutors and for “not having total control of the office.” This is exactly the havoc Gonzales has created at DOJ. He has politicized and dumbed-down the highest-level positions with inexperienced zealots, and alienated and demoralized the real professionals upon whom DOJ depends. Law enforcement agencies tend to be respectful of authority, and criticizing the boss is rarely the road to success. But maybe — just maybe — the situation is grave enough, and the strong statements from both sides of the Senate aisle are inspirational enough, that DOJ professionals will find a way to band together to express their outrage at what Gonzales has done to this vital agency and its work. By absurdly calling him “our No. 1 crime fighter,” Bush has thrown down the gauntlet to the true crime-fighting professionals. Whether they will pick it up is still uncertain. Alexander Hamilton wrote that he hoped the Senate’s power to “advise and consent” on appointments “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” Clearly, that doesn’t always work. Congress helped get us into this mess by voting to confirm Gonzales two years ago: It may now have to take the responsibility to get us out of it. Dan Small is a trial partner in the Miami office of Duane Morris. He is a former federal prosecutor and former vice chair of the American Bar Association’s White Collar Crime Committee. He has written several books on litigation for the ABA, including Preparing Witnesses (2d ed. 2004).

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