Bush Faces Void at Justice Department

Attorney General Gonzales's resignation leaves the Justice Department more devoid of permanent leadership mid-administration than at any time since the Nixon era.

The reins of the Justice Department will pass next month to the department's solicitor general, Paul Clement, President Bush said yesterday. The solicitor general, whose office handles the Justice Department's Supreme Court litigation, is ordinarily the fourth-ranking official at the department. Recent resignations of the department's nos. 2 and 3 officials have left Mr. Clement as the highest-ranking employee there to have received Senate confirmation to his post.

"It's deeply distressing to those who care about the institution of the Department of Justice to see all the leadership positions left unconfirmed for so long," a former senior Justice Department official, who requested anonymity, said.

The last solicitor general to serve as acting attorney general for any significant length of time, Robert Bork, came into the top job following the Watergate-era "Saturday Night Massacre" of 1973, during which the attorney general and his deputy resigned. The solicitor general was then the department's no. 3 position.

"I don't think it's happened since then," Mr. Bork told The New York Sun yesterday. "I don't know if it had ever happened before. Except in a time of crisis, it's unusual."

Mr. Bush has not indicated whom he will nominate to serve as a permanent attorney general. Any name he tenders is expected to be closely scrutinized by the Senate. Senators from both parties have objected to Mr. Gonzales's handling of the department, criticizing him particularly for the politically motivated firings of several U.S. attorneys that occurred under his watch last year. More recently, several senators, including Senator Schumer, have called for an investigation of Mr. Gonzales for perjury based on statements he made about the administration's Terrorist Surveillance Program, which involves warrantless wiretaps.

"Congress is coming back to session with their knives sharpened to resume this inquiry," a former U.S. attorney in Brooklyn under President Clinton, Zachary Carter, now at Dorsey & Whitney LLP, said. "The White House may have felt they could deflate those efforts by securing Gonzales's resignation."

Among the names being floated as possible nominees include the secretary of homeland security, Michael Chertoff; chairman of the Securities and Exchange Commission, Christopher Cox; a federal appellate judge in Washington, Laurence Silberman, and a former deputy attorney general, Larry Thompson.

Should a protracted confirmation dispute over a nomination for attorney general develop, the experience of Watergate could influence the Senate's playbook. Several former Justice Department officials said the Senate could condition its confirmation on the appointment of a special prosecutor to investigate Mr. Gonzales on either the perjury allegations or his management of the Justice Department. Such a situation developed in 1973, when the Senate approved the nomination of Elliot Richardson as attorney general after he pledged to appoint a Harvard law professor, Archibald Cox, to investigate Watergate.

"When they try to confirm a successor, they're likely to get as a condition the appointment of a special prosecutor," Mr. Bork said. "I think it would be terribly inappropriate and would guarantee paralysis for the remainder of Bush's term."

The success of such a request, however, is far from assured.

"I would think the White House would strongly resist the appointment of a special prosecutor. The best way for the White House to fend that off is to very quickly settle on a nominee of unimpeachable qualities," a law professor at Pepperdine University, Douglas Kmiec, who headed the Justice Department's office of legal counsel during President Regan's second term, said.

Mr. Kmiec said the outcome of the Justice Department's internal investigation into politicization at the department under Mr. Gonzales could play a role in the ease with which the White House can get a nominee approved.

"With Watergate as a precedent, the confirmation of a successor could well hinge on a good faith effort to complete existing investigations, such as the Inspector General's investigation," he said.

Mr. Bush also could opt to avoid the prospect of a confirmation showdown and allow Mr. Clement to finish up the term in the capacity of acting attorney general. One question that will occupy lawyers in both the Bush administration and in congressional offices is whether the federal Vacancies Act limits the amount of time Mr. Clement can serve as an acting attorney general.

A law professor at New York University, Rachel Barkow, said that because Mr. Clement has been confirmed as solicitor general he can serve as acting attorney general without any time limit. Ms. Barkow, an expert in administrative law, said a 1974 district court opinion involving Mr. Bork's authority to serve as acting attorney general for more than 30 days found that there was no time limitation.

Even with the choice of allowing Mr. Clement, 41, to lead the Justice Department indefinitely, Mr. Bush may feel some pressure from within the department to fill top-level vacancies with permanent appointees.

"This is a perfect opportunity for the Bush administration to breathe some fresh air into the Justice Department," a former chief of the criminal division in the U.S. attorney's office in Brooklyn, Daniel Alonso, now a partner at the law firm Kaye Scholer, said. "The events of the last six months have, to put it mildly, affected morale at the Justice Department."

Mr. Gonzales publicly announced his resignation yesterday in Washington, saying: "I have lived the American dream." Before leading the Justice Department, he served as the president's White House counsel beginning in 2001. Senators, both Democrats and Republicans, had been seeking his resignation for months.

In a statement responding to the resignation, Mr. Schumer said Mr. Gonzales had "long ago lost the confidence of the American people and a majority in Congress."

Others said Mr. Gonzales is leaving his job on a note of minor vindication.

Congress this month gave Mr. Bush expanded surveillance authority, approving one of the administration's more controversial legal claims of executive power — one that Mr. Gonzales had supported as White House counsel.

"In that respect, I'm certain he and the president understand his tenure not to be a total failure," Mr. Kmiec said.