an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Because it is now beyond doubt that officials in the White House had significant involvement in the creation and development of the list that was presented to you -- and because the ultimate decision to remove the U.S. Attorneys was made by the President -- we would need full disclosure of communications within the White House, and between White House and DOJ officials, in order to bring all the relevant facts to "full light."
The President ordinarily does not assert Executive privilege without a recommendation to that effect from the Attorney General. Will you assure us today that you will recommend to the President that he not assert any alleged privilege in order to withhold from Congress communications that occurred within the White House (and in RNC databases) that would shed light on those facts?
Too easy. He will just claim that (a) he has yet to study the question (probably true) and is not yet in the position to give an answer and/or (b) he will assert attorney-client and work-product privilege in claiming that he could not answer the question even if he had studied the issue.
There is wiggle room. Gonzales answers, "yes, I'll recommend it if he asks." The question and answer alert the White House not to ask, or, if they do ask, they do so to help Gonzales (who, we'll presume, will keep his promise to the committee), with no intention of taking his advice.
Alternatively, Gonzales says, "Dorglezark. I really like jelly beans. When do we break for lunch?" After that, everyone on the committee decides he said whatever they thought he meant to say, and nothing happens after that.
"Mr. Attorney General, in your written statement to this Committee, you insist that '[w]e must ensure that all the facts surrounding the situation are brought to full light.' "
And yet here we are again...
If you can't even get the facts straight in a case that involves communications between key people under your direct supervision and the White House, then how can the American people expect you to competently manage 93 federal prosecutors spread out all over the country?
I think this one is pretty good, but unfortunately there's simply no expectation that Gonzales will answer it honestly. It's not a question where lying in response would expose him to a purgery charge.
He's too brazenly dishonest for this to work, IMO.
PLAY HARDBALL! It's the only thing that works! Don't you get it?
Attorney General Gonzales, as the nation's chief law enforcement officer, you obviously know that lying to Congress is a federal offense. Yet even the Republican members of this committee do not find your testimony that you do not remember recent meetings and other events remotely credible. In other words, when you said over and over and over again in your previous testimony that you did not remember certain recent events, we think you were lying.
If you will not resign, why should we not put a special prosecutor in place to assess whether or not you were lying to Congress? If it is found that you were, and you still will not resign, we will impeach you, as you will have brought the stain of dishonor upon the United States of America.
"The only ground upon which I could advise the President to waive his executive privilege is if there was evidence of criminal wrongdoing. In this case, there is no evidence at all of any criminal wrongdoing or even mere impropriety."
"The President has given Congress all the access it needs to ensure the facts of this matter are brought to full light. Although he has no obligation to do so, the President has made available his advisors for interview by members of Congress. I would not advise the President to waive his executive privilege any further."