The Ramifications of Neutrality (and Federalism):

While we wait to hear whether Patrick Fitzgerald indicts anyone in the Bush Administration, I think back to a conversation I had shortly before the 2002 elections with a friend who was in the White House Counsel's office. The friend said that having a Republican majority in the House and Senate mattered a great deal in the White House -- yes, it would help with legislation; but more to the point, the friend stated happily, "That means no investigations." As the friend noted, investigations had tripped up prior Presidents, but with the demise of the independent counsel statute, investigations would be controlled by Republicans -- and the White House had every reason to expect that it would be able to control them. (I had a somewhat similar conversation with another White House friend before the 2004 elections, but that is another story.)

But a funny thing happened to this plan: when Plame's outing as a CIA agent became an issue, Ashcroft recused himself (appropriately, given his close ties to some of the apparent targets), leaving the matter in the hands of his deputy, James Comey. Comey, in turn, appointed Patrick Fitzgerald, a Republican not known as a hard-core loyalist. The White House, angry that in this action as well as some of his hiring decisions Comey "erred too much on the side of neutrality and independence," made it clear that he would not be appointed Attorney General. (Indeed, a White House official gave an additional quote that Orin higlighted at the time, and that I still find disturbing in describing the leadership of the Department of Justice: "The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president." The whole Legal Times article is worth reading, although you need to subscribe to get access.)

Had Comey appointed someone who looked tough but in fact wouldn't really harm the White House, life would have been a lot easier in the West Wing. But Comey showed that darned independence, and now they may be in quite a pickle. (Of course, it could be that Fitzgerald issues no indictments and all this blows over. We'll just have to wait and see.)

I hope that the lesson the Bush Administration draws from all this is not that they made mistake in failing to appoint a more "loyal" Deputy Attorney General, but I wouldn't count on it.

A final note: the only other prosecutorial cloud on the horizon results from federalism. If the federal government controlled the units below it, there would be no indictment against Tom DeLay. When you control the levers of the federal government, state and local (like Comey's "neutrality") represents a wild card. The Bush Administration doesn't like wild cards (and in practice it often doesn't like federalism). But control right now seems to be in short supply.

Chris Lansdown (mail) (www):
"I hope that the lesson the Bush Administration draws from all this is not that they made mistake in failing to appoint a more "loyal" Deputy Attorney General, but I wouldn't count on it."

If you were in the Bush Administration's position, what lesson would you draw?
10.26.2005 10:23am

If I were in the Bush administration all of my lessons right now would concern learning how to get to a non-extraditing country.
10.26.2005 10:30am
BruceM (mail) (www):
Do you really think bush won't immediately and fully pardon Rove, Libby, and Cheney? It will be called "the constitutional option" by loyalists. Expect to see it happen by the end of the year.
10.26.2005 11:08am
Anderson (mail) (www):
Thanks for the post. I had missed that gem of a quote about the Department of "Justice." My god, what shameless times we live in.
10.26.2005 11:14am

One possible lesson would be that you should always make sure to obey the law, and to not listen to those who will try to tell you that it is OK to break the law as long as you don't think you will get caught.
10.26.2005 11:37am
Hattio (mail):
Or worse, those who say it's okay to break the law as long as you and your friends are in power...wait a second. I guess if BruceM is right, it really is okay to break the law if your friends are in power. And depressingly, BruceM is right.
10.26.2005 11:56am
pbswatcher (www):
Perhaps you would have them assemble the best possible team that opposes the President? The job description of appointees is to further the President's policies. There is no reason to appoint people opposed to those policies.
10.26.2005 12:03pm
Al Maviva (mail):
I'm generally a supporter of the Administration but I find the crony-ism and the lacky-ism a particularly disgusting feature of it. A liberal friend of mine who has worked in the civil service for many years said that this started with the Clinton Administration's wholesale hiring of campaign staffers to fill key political positions, and it was raised to high art form by the clique from Texas. The Administration needs to wise up, or its demise will be well deserved, and I must say I will not shed a tear. In Clintonizing the Republican party, orienting all goals towards partisan tactical political advantage and in repeatedly driving a stake through the heart of principled conservatism, this Administration has guaranteed itself lots of political wins, at the cost of severe strategic damage to the conservatism that elected it. This will come ultimately at severe cost to the Republican Party, which was in fact revived by conservatism.

The Julie Myers pick is one example; the Harriet Miers pick though, is really the supreme example. I am a pretty decent lawyer, but no Clarence Darrow. Yet I've read through some of Ms. Miers work product, and I am appalled. She must have something going for her -- you don't get to be a bar president without at least having some political savvy. But if all I knew her from was her written work product, I would assume that she is a dummy. A great big dummy who is too arrogant to make her junior attorneys work for her to polish up her work and her cloudy reasoning.

In the end, the biggest Bush / Rove mistake is that insistence on control and reliance on the Texan inner circle, which has produced a few geniuses but many mediocrities. Like a sports team, you can go on for a while with one or two superstars, but eventually you need strong role players in order to keep winning. We're seeing the start of a losing streak here as the superstars age, and the scrubs fill in positions that really need first rate role players, or people who are stars in their own right. Sometimes, you can't grow that talent in the bush leagues, and you need to draft and trade for it.

The inner circle has erred in assuming that conservatives in general would not be loyal to the president. They have indeed hired the best possible picks that are loyal to the president -- personally loyal to the president. That's how you wind up with these second raters like Miers, whose status is apparently based on adulatory notes with happy faces. The Texans' tragic mis-underestimation is failing to understand that movement conservatives and the deep bench in Washington think tanks and private industry would be incredibly loyal to the office of the president and that would be sufficient to get the job done for Mr. Bush. But instead of hiring experienced foreign policy and military and general government hands who cut their teeth in the Reagan and Bush 41 administrations, they've gone generally with the people who supervised phone banks, advised on election law, or corralled pioneers and squeezed donations out of them. Bush is getting what he richly deserves right now, because he has chosen to hire people who are personally loyal, rather than loyal to his office, and the mission of providing good governance based on conservative principles.
10.26.2005 12:04pm
AppSocRes (mail):
The real lesson here is one that no administration has yet learned: That the problems do not arise from the faux pas, but the attempts to cover up the faux pas. In the current instance, if all those who gave Plame's name out had immediately stepped forward and explained exactly what happened, it would probably have appeared to most reasonable people that there may have been misjudgements in the heat of political battle, but nothing serious enough to amount to a crime or even the basis for dismissal from the White House. A partial exception to this was the Clinton coverup of his pathetic affair with Lewinsky: If he had been truly forthcoming when the story first broke, he probably would have had to resign and Al Gore would be President today. Here the coverup "saved" Clinton but destroyed his party.
10.26.2005 12:08pm
James968 (mail):
One of the things that strikes me about the Bush Admin, is their tendency for "Group Think" and the expectation that everyone is on the same page (and the inability to understand this):

In this story the quote that best covers it is:
"The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president."

This is a rather strong saying, but it does seem to fit for their "Objective":

"If you are a fool, surround yourself with smart people. If you are
a smart person, surround yourself with smart people who disagree with
you." -unknown
10.26.2005 12:08pm
Anderson (mail) (www):
Italics begone?
10.26.2005 12:23pm

I think the problem with your analysis is that you are implicitly assuming that the appointees should have no role in helping the President make his policies in the first instance, and that internal dissent and debate play no role in making good policy. Moreover, the President simply cannot be asked to make every decision.

In other words, I don't think there is a problem with saying that everyone who works for the President is supposed to "support" the President, provided that you realize that supporting the President does not mean you have to agree with everything the President wants to do. Of course, in the long run, you have to be willing to take the President's orders, but you should also be willing and able to argue a contrary position to the President before he issues his orders. Moreover, the President should also choose people capable of exercising independent judgment, because ultimately the President cannot possibly participate personally in every crucial decision.

In short, obedience is important, but loyalty as a more general proposition should not be considered more important than independence and ability, because to truly support the President in the performance of his duties, independence and ability are crucial.
10.26.2005 12:27pm
Nikki (www):
CNN Headline News is reporting that the grand jury is close to a decision, but that there will be no public announcements today. Oh, and this is an excellent post.
10.26.2005 12:35pm
John Herbison (mail):
Thanks for an insightful post. In this context, the nomination of Miss Miers may be a hedge against the likely fruits of future (or pending) investigations--as though, when Justice White retired, President Clinton had nominated Bruce Lindsley.

The operative policy question indeed appears to be, "how does this affect those whose surnames begin with Bu and end with sh?" One cannot assume that current Justice Department officials will recuse themselves as Mr. Ashcroft did in the Plame inquiry.

The final analysis, however, suggests that the current President Bush will be as quick to resort to the pardon power as was the former President Bush. Remember Weinberger?
10.26.2005 2:29pm
Huggy (mail):
They say Patrick Fitzgerald has no party affiliation. I think Mr Benjamin is naive. The President, Carl Rove, Vice President, Scooter Libby, ... aren't. If things go bad then they miscalculated. Otherwise their opponents spent a lot of wasted effort.
10.26.2005 2:50pm
Shelby (mail):
(and in practice it often doesn't like federalism)


you should also be willing and able to argue a contrary position to the President before he issues his orders

That's a fine principle, but this Administration (while I do not really know its inner workings) has certainly developed a reputation as one where only the very top people (Rove, Cheney, Rice, maybe Card) are actually allowed to do that. That impression is reinforced by the President's evident personality and insistence on personal loyalty.
10.26.2005 3:18pm

That is also my impression, and I think it has served this Administration (and in fact this President himself) very poorly.
10.26.2005 3:39pm