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There are a number of candidates who could be tapped to replace John Ashcroft as attorney general if President George W. Bush wins re-election. But perhaps the most obvious choice, Deputy AG James Comey, almost certainly will not be. Since his confirmation as the No. 2 Justice Department official in December 2003, sources close to the department say Comey has had a strained relationship with some of the president’s top advisers, who feel that Comey has been insensitive to political concerns. According to several former administration officials who spoke on the condition of anonymity, tensions were sparked when Comey appointed a special prosecutor to take over the investigation into whether a White House official leaked a Central Intelligence Agency operative’s name to the media. The special prosecutor, U.S. Attorney Patrick Fitzgerald, has doggedly pursued the probe, and several administration officials, including presidential adviser Karl Rove, have been questioned by prosecutors. Distrust of Comey deepened after some of his early staff picks were vetoed by the White House for not having strong Republican credentials, sources say. “The White House always wants to make sure the administration is staffed with people who have the president’s best interests at heart. Anyone who resists that political loyalty check is regarded with some suspicion,” says one former Bush administration official. “The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president.” Earlier this year, after the disclosure of internal administration memos that seemed to condone the torture of suspected terrorists overseas, Comey pushed aggressively for the Justice Department’s memos to be released to the media and for controversial legal analyses regarding the use of torture to be rewritten. In a deeply partisan administration that places a high premium on political loyalty, sources say Comey — a career prosecutor and a former U.S. Attorney for the Southern District of New York — is not viewed as a team player. “[Comey] has shown insufficient political savvy,” says the former official. “The perception is that he has erred too much on the side of neutrality and independence.” Comey declined to comment. Comey’s reputation as a prosecutor is that of a “straight arrow.” He is perhaps best known for smoothing the relationship between federal prosecutors in New York and Northern Virginia — sites of the attacks on the World Trade Center and the Pentagon — in the days following Sept. 11, 2001, while he was the U.S. Attorney in New York. When asked about the CIA leak investigation during his Senate confirmation hearing, Comey stated: “I don’t care about politics. I don’t care about expediency. I care about doing the right thing.” Within Comey’s first month on the job, Ashcroft recused himself from the leak investigation. As acting attorney general, Comey appointed Fitzgerald, a longtime friend and U.S. Attorney for the Northern District of Illinois, to lead the investigation. “The appointment of Pat Fitzgerald is the kind of decision that the White House isn’t thrilled with,” says one former DOJ official. “Comey knew what he was doing when he appointed Pat.” POTENTIAL PICKS While Comey is apparently out of the running, his predecessor, Larry Thompson, is frequently mentioned as a candidate to replace Ashcroft. Other possible nominees include: White House Counsel Alberto Gonzales; Bush’s campaign chairman Marc Racicot, former governor of Montana; and former New York City Mayor Rudolph Giuliani. Thompson stepped down from the Justice Department’s No. 2 slot in August 2003, but has maintained close ties to the administration. Thompson’s appearance alongside Bush at an April 2004 event celebrating the USA Patriot Act triggered speculation that the former U.S. Attorney for the Northern District of Georgia topped the president’s short list to replace Ashcroft as AG in a second term. But four months later, Thompson signed on to join PepsiCo as general counsel. One former DOJ official who served in the Bush administration says Thompson’s move to corporate America leaves the administration without an obvious successor for Ashcroft. “For a long time, everyone assumed it would be Larry. People are kind of reeling,” the former official says. Still, some Washington insiders speculate that Thompson might walk away from what is surely a lucrative pay package for the chance to be the country’s first African-American attorney general. Thompson did not return calls seeking comment. THE INSIDER Given Thompson’s recent career move, White House Counsel Gonzales is seen by many as the odds-on favorite to replace Ashcroft. Though Gonzales has long been viewed as a potential Supreme Court nominee, former colleagues say the Bush aide has demonstrated interest in the DOJ post. For his part, Gonzales possesses every major attribute Bush is expected to look for in an attorney general: personal loyalty, sharp political instincts, a strong view of presidential power, and counterterrorism credentials. Gonzales — a former judge on the Texas Supreme Court — would also add diversity to a Bush second-term Cabinet, as the first Hispanic attorney general in the nation’s history. Placing Gonzales — a trusted personal aide to the president — at the helm of the Justice Department would shift the administration’s approach to legal issues, say several former Bush administration lawyers. Over the past four years, many key legal decisions have been made at the White House under Gonzales rather than at the Justice Department. With Gonzales at Main Justice, control over the administration’s legal agenda would gravitate to the AG’s office. D.C. lawyer Bruce Fein, a Republican who served in the Justice Department during three presidential administrations, says bringing the Justice Department into the center of legal decision making would be a positive change. “The Office of the White House Counsel is highly politicized. It has no institutional memory and no public oversight,” Fein says. “The institutional memory comes from the bureaucracy of the Justice Department.” Gonzales has managed to keep a fairly low profile during four years of service to the president, but his reputation has been tarnished by controversy over some administration policies in the war on terror. In 2002, Gonzales sought and accepted a legal opinion from the Justice Department’s Office of Legal Counsel that adopted a narrow view of what actions would violate prohibitions against torture. The memo, which also argued that the president’s power as commander in chief could override legal prohibitions on torture, was used in Pentagon reviews of interrogation tactics. During a rare public briefing in June 2004 to respond to criticism, Gonzales maintained that the president never ordered or authorized torture and pledged to reconsider the administration’s controversial legal analysis. If nominated, Gonzales’ Senate confirmation could be bloody. “The Democrats would eat him alive,” Fein says. Gonzales’ supporters are more optimistic. “He would certainly generate political tension,” says a former Bush administration official who worked closely with Gonzales, adding, “I don’t think it would be enough to stop him from being confirmed, and it certainly wouldn’t be enough to stop the president from nominating him.” FAMILIAR FACES Of course, speculation about who will fill a president’s Cabinet is more of a parlor game than a science. Following the 2000 election, Racicot, governor of Montana from 1993 to 2001 and a former state attorney general, was considered the leading contender for the top Justice Department post. Instead, the president selected Ashcroft, a popular figure in the socially conservative wing of the Republican Party. If Bush wins in November, Racicot, who serves as chairman of the president’s re-election campaign, will almost certainly be in line for a Cabinet post. A lot has changed over the past four years, however. Although Racicot’s credentials are quite similar to Ashcroft’s when the latter came into the job, some doubt whether a career politician can be a viable candidate to run the Justice Department in the aftermath of the Sept. 11 terrorist attacks. “Racicot was a perfectly reasonable choice after the last election,” says Paul Rosenzweig, a scholar with the conservative Heritage Foundation. “In a post-9/11 world, the skill set needed for an attorney general is familiarity with law enforcement and intelligence issues, which Racicot may not have.” Among the possible AG picks who would come to the department with ample counterterrorism experience are Federal Bureau of Investigation Director Robert Mueller III and senior Department of Homeland Security official Asa Hutchinson. Hutchinson, a former congressman who was named chief of the Drug Enforcement Administration in 2001, currently serves as DHS undersecretary for border and transportation security. “I think experience in national security issues and law enforcement is going to be a critical qualification for an attorney general in the current climate,” says D.C. lawyer Charles Cooper, who ran the DOJ Office of Legal Counsel during the Reagan administration. “There’s no more important function that the Department of Justice now fulfills than law enforcement as it relates to the war on terror.” The candidate who tops the wish list of many Republicans is former New York Mayor Rudolph Giuliani, a vocal Bush supporter. Giuliani held the No. 3 post at Main Justice from 1981 to 1983 and later served as Manhattan’s top federal prosecutor. (Both Comey and Fitzgerald worked as prosecutors in Giuliani’s office.) A controversial mayor for most of his tenure, Giuliani became a national hero for his calm resolve in the aftermath of the Sept. 11 attacks. While Giuliani would bring new blood and a dash of celebrity to a second Bush Cabinet, he might have a hard time winning the support of conservative Republicans because of his moderate positions on abortion and gay rights. The bigger problem: Giuliani may have larger political ambitions than serving as attorney general. As one of the former Bush administration officials puts it: “AG is not a logical stepping stone for someone interested in running for president.”

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