ACSBlog: The Blog of the American Constitution Society

“The first thing we do, let’s kill all the lawyers.” Alberto Gonzales’s sorry tenure in the Bush administration would seem to give credence to Shakespeare’s oft-cited incitement against the legal profession.

The primary responsibility of the Attorney General is to uphold the Constitution and laws of the United States in a fair and even-handed manner. In failing to comprehend this responsibility, Alberto Gonzales compromised himself, his office, the Constitution, and ultimately even the President who appointed him.

The responsibility every Attorney General owes the nation is to raise hard legal and constitutional questions within the administration whenever the President is tempted to overreach the limits of his authority. Gonzales, however, chose to function more like the President’s personal legal strategist, doing everything in his power to justify the President’s apparent desire to authorize torture, deny detainees access to the writ of habeas corpus, order unlawful electronic surveillance, and institute legal proceedings that defy due process of law.

There is no excuse, other than cronyism and personal weakness, for Gonzales’s confusion about his appropriate role, and in point of fact, he and future office holders could learn much from the extraordinarily disciplined and principled actions of some of his predecessors who also served our nation in perilous times.

After the outbreak of World War II, Attorney General Robert Jackson warned the nation’s prosecutors that “times of fear or hysteria” have often resulted in cries “for the scalps” of those with dissenting views. He exhorted his U.S. Attorneys to steel themselves to be “dispassionate and courageous” in dealing with “so-called subversive activities.”

After Franklin Roosevelt appointed Jackson to the Supreme Court, he was succeeded as Attorney General by Francis Biddle. On December 15, 1941, Biddle reminded the nation that in time of war, “hysteria and fear and hate” run high, and “every man who cares about freedom must fight to protect it for other men” as well as for himself. Even when Roosevelt pressured his Attorney General to prosecute those who criticized his policies, Biddle courageously resisted. Later, when the public began to call for the wholesale internment of individuals of Japanese descent, Biddle furiously opposed such a policy as “ill-advised, unnecessary, and unnecessarily cruel.”

In a face-to-face meeting with Roosevelt, Biddle told the President that such a program could not be justified “as a military measure.” Although Roosevelt overrode Biddle’s objections largely for political reasons, he later rightly observed that the episode had shown “the power of suggestion which a mystic cliché like ‘military necessity’ can exercise.” He added sadly that because of a lack of independent courage and faith in American” values, the nation had missed a unique opportunity to “assert the human decencies for which we were fighting.”

In 1971, the public began to learn that the FBI, the CIA, the NSA, and the Army had engaged in a widespread program of investigation and secret surveillance of anti-Vietnam war protesters in an effort “to expose, disrupt and otherwise neutralize” the antiwar movement. A congressional committee found that the government, “operating primarily through secret informants,” had “undertaken the secret surveillance of citizens on the basis of their political beliefs,” and that the FBI alone had “developed over 500,000 domestic intelligence files” on public officials, journalists, entertainers, professors, and ordinary citizens.

In the face of such revelations, and in his role as Attorney General, Edward Levi created stringent guidelines which reiterated and reaffirmed the rights of all Americans by clearly and carefully circumscribing the investigative authority of the FBI. The “Levi guidelines” expressly prohibited the FBI from investigating, discrediting, or disrupting any group or individual on the basis of protected First Amendment activity. These guidelines were rightly hailed as a major advance in law enforcement and a critical step forward in protecting the rights of American citizens against overzealous and misguided government officials. Alberto Gonzales helped eviscerate the Levi guidelines during the years of the Bush presidency.

Of course, it is not all Gonzales’s fault. In truth, he should never have had the privilege of serving as Attorney General of the United States. Robert Jackson, Francis Biddle, and Edward Levi were men of great intellectual distinction, integrity, and character. Alberto Gonzales is not. But for his long-standing friendship with George W. Bush, he would never have been, and should never have been, within hailing distance of a position of such responsibility. He was in over his head.

By failing to protect American values and individual liberties, Alberto Gonzales has not just discredited himself, his office, and his profession. He has also compromised the Constitution. “The first thing we do, let’s kill all the lawyers.” It is worth recalling that these words were uttered in Henry VI not by a lawyer’s disgruntled client, but by a conspirator in Cade’s Rebellion who was plotting to overthrow the rights and liberties of the English people. “The first thing we do, let’s kill all the lawyers.” It is men like Robert Jackson, Francis Biddle, and Edward Levi who represent the highest ideals of public service and the true spirit of the legal profession. It is men like Alberto Gonzales who give the profession a bad name.