The resignation of Attorney General Alberto Gonzales raises a few issues central to both 2301 and 2302. (Here's a reasonable outline of his resignation and the circumstances that led to it.)
The key issues for 2301 are constitutional. The Constitution does not mention the position of attorney general, nor any specific department or office. It simply states that "he [the President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." Nothing is said about how these departments are created, and who they are ultimately responsible to.
The Attorney General was originally established in 1789 in the Judiciary Act and gave advice to both Congress and the President. Gradually the office focused primarily on serving the executive only. As the national government became more involved in law enforcement the Department of Justice was established in 1870, by an act of Congress, and provided a staff that facilitated more activity--specifically more opportunity for the Executive to take action without consulting Congress.
This has led to a tug of war over the control over the Attorney General, and questions about to whom or what the office is ultimately allegiant to.
The fact that the office is in the executive branch, plus the fact that Article II of the Constitution
begins by stating that "The executive Power shall be vested in a President of the United States of America" has been taken by supporters of the unitary executive to mean that all executive officials are responsible only to the president (opponents of the theory argue that it invites tyranny). The Attorney General is only responsible to the President.
Supporters of congressional power differ and state that this is a violation of the separation of powers. They argue that since Congress established the executive departments, and is responsible for funding them, they have oversight authority over them. The Attorney General is also responsible to Congress. This issue was in the background during Gonzales' testimony before the Senate Judiciary Committee this year. The Senate was working from the assumption that Gonzales was there because the committee had the power to subpoena him, Gonzales never conceded this, rather he let it be known that he was there because the President allowed him to go. To admit that he could be compelled to testify over the objections of the President would have been to admit that Congress had power over the office.
A separate take holds that the Attorney General, and all who work in the Justice Department, is responsible to the Constitution and to the rule of law. If the activities of the President--or Congress--go beyond what is acceptable by law they should resign. This issue came up during the Watergate scandal some Justice Department officials chose to resign rather than follow some of President Nixon's orders.
A interesting series of questions during the recent testimony of a Justice Department official illustrates this dispute. As an aside she mentioned that she took her oath to the President when she took her job, she was corrected by a Senator who reminded her that her oath was actually to the Constitution, not the President.
This touches on another 2301 related topic, the political parties. The Constitution says nothing about parties, but they evolved quickly because they help get people elected and bills passed. The best way to get people involved in parties is to convince them that they'll get something in return for their time and trouble. Doing so often involves staffing executive agencies with partisans. There is nothing new in this, but critics argue that the Bush Administration took it to a new level by using partisanship as a determining factor in who was appointed a U.S attorney as well as which existing attorneys were fired.
These critics wonder whether Gonzales saw himself primarily as a law enforcement officer or a partisan. They point to the fact that attorneys who were hard on Republicans, or soft on Democrats, were fired and that they encouraged aggressive investigations of Democratic candidates prior to the 2006 elections. These actions have led to a large number of resignations from the department.
The fighting between Congress and the President is also relevant to 2302, as is the relationship between the bureaucracy and the White House.
Commentators have pointed out that the Bush Administration has, with few exceptions, been composed of a high number of loyalists. This isn't always the case with presidential administrations since appointees often have to be confirmed by the Senate, which can filter out loyalists in favor of people with more attachment to the mission of the department than the political needs of the White House. Loyalists tend to end up as policy advisers, or other aides in the White House staff, not departmental secretaries.
Members of the White House staff are unquestionably bound to the president. Their job is to make the president look good. Departmental secretaries walk the line between what the president wants and what the mission of the department requires. This involves working with the civil servants who generally know more about their specific policy arena than the president, or even the newly appointed secretary does. Controlling an obstinate bureaucracy is an ongoing struggle for presidents.
When Bush was reelected to a second term, many of his cabinet secretaries resigned and were replaced with members of the White House staff. Gonzales was one--Secretary of State Condoleeza Rice was another. He had been a the president's legal adviser, now he was the country's.
Critics argue that Gonzales never appreciated this shift and continued to act as the president's personal lawyer despite his change in position. If so, it could be argues that the president made a strategically appropriate choice in ensuring that he would get an Attorney General that would do his bidding when asked.
A perfect example of this was the story about John Ashcroft's (Bush's first Attorney General) refusal to allow warrant-less wiretapping to go forward since he believed it would violate the Constitution. Gonzales had no such reservations.
Many of the investigations that Democrats (and select Republicans) have been pursuing have been intended to ensure that a proper relationship between the legislative and executive branches would be retained. The question now is whether Gonzales' resignation will stifle this effort.
We'll follow this as long as necessary to find out.
