The Ballad of 'Fredo' Gonzales

Alberto Gonzales was born on August 4, 1955 in San Antonio, TX, to Pablo and Maria Gonzales, who had met when they were migrant workers in Texas. Alberto was the second of eight children. Growing up he lived in a two-bedroom house in north Houston, near the airport where his father worked construction. Gonzales told the Houston Chronicle that the house did not have a telephone until he was in high school, and had no running hot water. "I remember getting water, putting it in a pot, putting it on the stove, heating it so we could take baths," Gonzales told the Chronicle. Gonzales's mother was still living in the house in 2003. "We have hot water now," he added.

Gonzales graduated from Houston's MacArthur High School in 1973, joined the Air Force, and was later admitted to the Air Force Academy. He transferred and completed his undergraduate degree at Rice University where earlier he had worked selling soft-drinks in the school stadium. After graduating from law school in 1982 Gonzales returned to Houston, joined the politically connected law firm of Vinson & Elkins, and eventually became the first first Hispanic to be named partner.

In the Republican culture at Vinson & Elkins, Gonzales decided to become one, as well. "I liked what I heard about some of the Republican principles about being self-reliant, hard work, and so I just gravitated to it," Gonzales told the Chronicle.

The section of V & E where Gonzales worked was known informally as the "deals" group, and handled business, real-estate and energy matters. One of Gonzales colleagues was Joseph Dilg, V & E's principal liaison to Enron, who later became managing partner. Dilg was named as a defendant in at least one Enron-related lawsuit, but V & E settled all lawsuits with the Enron Bankruptcy Estate in June 2006, paying $30 million and foregoing $3.9 million in claims for prior service. Gonzales reportedly had an attorney-client relationship with Enron, although he has never described it. Gonzales worked with Kenneth Lay on an economic summit held in Houston in 1990, and also on the 1992 Republican convention.

Another major client served by V & E's "deals" section during the time Gonzales was with the firm was Halliburton. According to Nathan Newman of the Yale Law Campaign for a Legal Election, Gonzales had a "strong relationship" with the client.

"... If History Has Taught Us Anything, It Is That You Can Kill Anyone"

Bush was elected governor of Texas in 1994, and selected Gonzales to be his chief counsel. During his tenure as chief counsel Gonzales prepared 57 death-penalty memoranda for Bush's review. Although the memos were intended to be confidential, Alan Berlow of The Atlantic magazine obtained copies after the Texas attorney-general ruled that they were not exempt from the Texas Public Information Act. The memos provide insight both into Gonzales view of the justice system, and on the relationship between Gonzales and Bush.

According to Berlow, the memos, mostly three to seven pages long, show a "clear prosecutorial bias," and "seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim." This, Berlow noted, ignores the fact that the justice system sometimes makes mistakes. A notable example was the case of Terry Washington. Gonzales devoted a full page of the memo's three to a detailed description of the crime, but barely mentioned the main argument of the clemency plea, which was Washington's limited mental capacity. Nor did the memo mention that potentially mitigating information concerning Washington's childhood, during which he and his nine siblings were repeatedly abused physically, was never revealed to the jury, even though prosecution and defense attorneys were aware of the circumstances.

The Washington case seemed to meet the criteria Bush recounted in his autobiography A Charge to Keep, in which he wrote "I don't believe my role is to replace the verdict of a jury with my own unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair." Nonetheless, Gonzales failed to bring such evidence to Bush's attention, nor did he note that defense counsel had not called a mental-health expert to testify on Washington's behalf -- a lapse that in Berlow's view clearly demonstrated that counsel was ineffective. Further, Gonzales did not note that ineffective counsel and mental retardation were the main arguments in Washington's thirty-page clemency petition.

Berlow asked Gonzales if Bush ever read any clemency petitions in death-penalty cases, and Gonzales responded with one of his now-famous equivocations, that he didn't read them in "every case." Berlow noted that Bush typically scheduled a half hour for death-penalty reviews with Gonzales, suggesting that that was unlikely to be enough time to review the details of clemency petitions.

The case of David Wayne Stoker is equally illuminating. Stoker was convicted in part based on testimony from a witness who later recanted, saying that a prosecutor had threatened him with perjury charges; several witnesses lied in court about the deal another key witness had received in exchange for his testimony; a psychiatrist who testified that Stoker would remain a violent offender (thereby making him eligible for the death penalty) never examined him, and was expelled from the American Psychiatric Association two years before the clemency petition reached Gonzales. None of this evidence was included in Gonzales's memo to Bush. Moreover, Gonzales's office contacted Stoker's lawyer approximately ten days before the execution to notify him that there would be no reprieve, but Gonzales's memo to Bush is dated June 16, 1997 -- the day of the execution. This, Berlow suggested, indicates that the decision had been made before Bush had even reviewed the execution summary, implying that Bush "wasn't interested in commutations."

In 1996, in an incident that was to become emblematic of Gonzales's relationship to W, Gonzales played a key role in getting Bush excused from jury duty. Presenting a convoluted argument that Bush should not serve because he might subsequently have to consider a clemency request for the accused, Gonzales enabled Bush to avoid answering questions about a drunk driving arrest in Maine in 1976. Reports of the arrest didn't reach the mainstream media until late in the 2000 presidential campaign. While Bush eventually acknowledged the incident, its disclosure so late in the campaign minimized its impact on the election.

"I've Always Taken Care of You, Fredo"

A year after he helped Bush avoid jury duty, Gonzales was appointed Texas Secretary of State, and in 1999 was appointed to fill a vacancy on the Texas Supreme Court.

While vacancies on the Texas Supreme Court are filled by appointment, justices are normally elected in Texas -- a situation that creates its own set of ethical issues. Texans for Public Justice (TPJ) noted that in the three election cycles prior to December 2000, the second largest contributor to Supreme Court justice campaigns was ... Halliburton. Between 1993 and 2000, five cases involving Halliburton came before the Texas Supreme Court, and each time the court ruled in favor of Halliburton or refused to hear an appeal of a lower court's favorable ruling.

During the same period, according to TPJ, the single largest source of corporate donations to Texas Supreme Court justices was Enron. TPJ noted that the Supreme Court accepts on average only 11 percent of the cases it is petitioned to review, but in the period under consideration it accepted two of three petitions from Enron and denied three of three petitions brought by adversaries of Enron.

In 1999 a Halliburton employee won a trial verdict concerning allegations that a supervisor had framed him in connection with a drug test for cocaine. Lower courts awarded the employee $2.6 million, but the verdict was overturned by the Texas Court of Appeals. Halliburton gave a number of contributions to the Texas Supreme Court justices, including $3000 to Gonzales, just before the court was to rule on the case. The justices did not recuse themselves, and the Supreme Court declined to hear the case, allowing the Appeals Court ruling to stand.

Gonzales drew the ire of conservatives when he wrote an opinion in a six-three decision to overturn a lower court ruling and allow a 17-year old to have an abortion without notifying her parents. In what The New Republic's Ryan Lizza described as "a careful effort to achieve a delicate political balance," and "a paean to legislative intent," Gonzales wrote:

While the ramifications of such a law and the results of the Court's decision may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature.

Justice Priscilla Owen, in a dissenting opinion, wrote that the majority's "actions raise disturbing questions about its commitment to the rule of law and to the process that is fundamental to the public's trust in the judiciary." She accused the majority of "manufactur[ing] reasons to justify its action" and of acting "irresponsibly in this case ... has disregarding] the law and has trampl[ing] the process on which the legitimacy of our law depends."

Lizza recounted a conversation between Gonzales and a concerned friend, on the eve of Gonzales departure from the court on his way to serve as then White House counsel. The friend worried aloud about "the obligations this administration will pay to the right wing." Gonzales assured the friend that "I'm a moderate, and I believe the governor is a moderate."

"That's Why They Call Him Superman"

"But just as the moderate governorship of George W. Bush has metamorphosed into an extremely conservative presidency, so too has Gonzales's moderate judicial philosophy been replaced by an aggressive partisanship as White House counsel," Lizza wrote. Gonzales promptly staffed the White House counsel office with former clerks for US Supreme Court justices Thomas and Scalia, along with:

  • Timothy Flanigan, co-author of Bush's Supreme Court brief during the Florida recount
  • Brett Kavanaugh, co-author of the Starr report
  • H. Christopher Bartolomucci, a former Senate Whitewater investigator

Apparently willing to let by-gones be by-gones, Gonzales's office recommended Priscilla Owen for an appeals court appointment, and Bush nominated her to the Fifth Circuit Court of Appeals in 2001.

Gonzales became the public face of a range of conservative administration initiatives, including the campaign to expand executive authority and insulate the executive branch from requests for records (whether from scholars, Congress or the General Accounting Office).

As reported elsewhere in The Dubya Report, in January 2002 Gonzales issued a memo that in effect retroactively justified a decision Bush had made that the Geneva Prisoner of War Convention did not apply to captured members of the Taliban.

Gonzales (or his staff) also wrote the presidential order instituting military tribunals for prisoners at Guantanamo Bay. The administration's position was repudiated by the Supreme Court in the Hamdan case, in which the court ruled that detainees must have traditional courts martial unless the President requests and Congress passes legislation allowing him to proceed differently. In September 2006 Congress passed the Military Commissions Act, effectively eliminating habeas corpus and other rights to due process for anyone designated an "enemy combatant" by the executive branch. Senator Chris Dodd of Connecticut has introduced legislation to restore habeas corpus and limit other Draconian provisions of the act.

According to Robert Novak, the "consensus" within the Bush administration is that Gonzales was "at sea" as White House counsel. Novak reported that former Secretary of State Colin Powell "was so appalled by Gonzales that he would shunt him off to Deputy Secretary Richard Armitage, who in turn handed him down to lower levels along the State Department chain of command." Novak describes Gonzales -- and other Bush cronies imported from Texas -- as having demonstrated "an ability to turn mere incompetence into the appearance of impropriety."

"... Was There Always a Buffer Involved?"

When right-wing Christian and former Senator John Ashcroft, Bush's first attorney general, resigned in November 2004 following a bout with pancreatitis, Bush appointed Gonzales to take his place. His nomination was unanimously opposed by all eight Democrats on the Senate Judiciary Committee, but he was confirmed by a 60-36 vote of the Senate on February 3, 2005. Writing in the Washington Post, Alan Berlow observed, "In nominating Alberto Gonzales to be the next attorney general, President Bush has selected a man with a long record of giving him the kind of legal advice he wants. Unfortunately, that advice has not always been of the highest professional or ethical caliber."

"Republicans close to the White House" told the New York Times that Gonzales appointment was "part of a political strategy to bolster Mr. Gonzales's credentials with conservatives and position him for a possible Supreme Court appointment."

The NY Times revealed in December 2005 that the National Security Agency (NSA) had been eavesdropping on US citizens without obtaining warrants. A subsequent Justice Department investigation into the program was about to consider Gonzales's role in authorizing it while he was White House Counsel, according to National Journal's Murray Waas, when Bush personally intervened and denied investigators the security clearance necessary to continue. "It is unclear whether the president knew at the time of his decision that the Justice inquiry -- to be conducted by the department's internal ethics watchdog, the Office of Professional Responsibility -- would almost certainly examine the conduct of his attorney general," Waas wrote. Gonzales continued to advise Bush on the investigation, even after he knew he was a subject.

Gonzales aides had been notified that the Office of Professional Responsibility (OPR) was preparing to question two people who had questioned the legality of the warrantless wiretapping: Jack Goldsmith, a former assistant attorney general in the Office of Legal Counsel, and James A. Baker, counsel for Justice's Office of Intelligence Policy and Review. Goldsmith had opposed Gonzales's advocacy of the program. Baker had notified the presiding judge of the special court created by the Foreign Intelligence Surveillance Act (FISA) that the Justice Department had improperly used information obtained from warrantless wiretaps to obtain surveillance warrants. (In January 2007 the administration agreed to operate the domestic wiretapping under the supervision of the FISA court, as had been standard procedure previously.)

Gonzales raised eyebrows about his understanding of the Constitution when he asserted during an appearance before Congress on January 18, 2007, that "there is no express grant of habeas in the Constitution. There is a prohibition against taking it away." Critics pointed to the widely held view that the Constitution starts from the premise that the people hold all rights, and proceeds to define the limits of government.

The most recent scandal to plague Gonzales concerns the firing of eight United States attorneys. US attorneys serve "at the pleasure of the president." It is not uncommon for many or all of them to be replaced when a new president takes office. These firings have come under criticism, however, because they appear to be part of a plan to install prosecutors who support Bush administration policies, or to retaliate against prosecutors whose conduct in their jobs was not deemed sufficiently supportive.

In the same January 18 appearance before the Senate Judiciary Committee in which he denied the existence of a constitutional right to habeas corpus, Gonzales stated:

I am fully committed, as the administration's fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney.

The statement was an attempt to pre-empt questions about administration plans to use an obscure provision of the 2005 Patriot Act that allows the president to appoint so-called "interim" US attorneys for indefinite terms, without Senate confirmation. Emails from Gonzales's chief-of-staff, D. Kyle Sampson, who resigned on March 12, 2007, show that the Justice Department and the White House planned to avoid Senate confirmation and appoint attorneys who could in principle serve until the end of the Bush administration.

Sampson wrote on September 17, 2006:

I am only in favor of executing on a plan to push some USAs out if we really are ready and willing to put in the time necessary to select candidates and get them appointed. It will be counterproductive to DOJ operations if we push USAs out and then don't have replacements ready to roll immediately.

I strongly recommend that as a matter of administration, we utilize the new statutory provisions that authorize the AG to make USA appointments.

... [W]e can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House.

Gonzales also assured the committee that the Justice Department was "working with home state senators to get U.S. attorneys nominated," and that "I would never, ever make a change in a United States attorney position for political reasons or if it would, in any way, jeopardize an ongoing serious investigation."

The emails and documents released to Congress contradicted that assertion, as well. When Bud Cummins, a US attorney based in Little Rock, AR, was fired, Sampson suggested Gonzales bypass any input from the two Arkansas Democratic senators, and use the Patriot Act authority to appoint Rove associate and former Republican national committee researcher, Griffin. "I]f we don't ever exercise it then what's the point of having it?" Sampson wrote a White House staffer.

In testimony prepared for his April 19, 2007 testimony before Congress Gonzales asserted that he was not involved in decisions to fire the US attorneys. ABC News, however, found an internal memo among the documents released to Congress that contradicted that assertion. The memo from Kyle Sampson, dated June 1, 2006 states "AG [Attorney General] has given additional thought to the San Diego situation and now believes that we should adopt a plan" leading to her removal if she was not sufficiently zealous about immigration enforcement. Gonzales's plan, Sampson wrote was to ""put her on a very short leash." "If she balks on any of the foregoing or otherwise does not perform in a measurable way … remove her," Sampson wrote, "AG then appoints new US [attorney] from outside the office."

Emails from Sampson also called into question Gonzales's assertion that he would not change US attorneys for political reasons, and showed that White House political advisor Karl Rove may have played a role in the firings. The emails documented that Rove expressed an interest in the firings in January 2005. Sampson wrote that, although home-state senators might object to the firings, "if Karl thinks there would be political will to do it, so do I."

As reported in the Washington Post and elsewhere, the firings took place after Bush told Gonzales he had received complaints that some US attorneys were not pursuing so-called "voter fraud" investigations. The White House acknowledged the conversation between Bush and Gonzales, but Gonzales said he does not remember it. Congressional Quarterly's Craig Crawford noted a parallel between Gonzales and Lewis "Scooter" Libby. Libby, of course, initially failed to remember that his boss, Dick Cheney, first told him of CIA agent Valerie Plame's identity. Libby's memory, lapse, Crawford observed, contributed to his perjury conviction. "And," Crawford added, "in both scandals it was the lying that got the White House in trouble, not the underlying activity."

Craig Desanto, head of the Justice Department's election crimes branch, last year told a panel investigating voter fraud that previous Justice Department guidelines barred federal prosecution of "isolated acts of individual wrongdoing" that weren't part of organized schemes to corrupt the election process. Moreover, prosecutors usually had to prove an intent to commit fraud. But Gonzales authorized prosecutors to file criminal charges against individuals. As reported by the NY Times, a five-year effort has failed to turn up any substantial evidence of a conspiracy to commit voter fraud.

Voting records show that many people charged have been Democrats. In one typical case, Kimberly Prude, 43, of Milwaukee, convicted of trying to cash a counterfeit county government check, and sentenced to six years probation, voted while on probation. Ms. Prude was confused over the eligibility rules, she told the NY Times. Her confusion resulted in a felony conviction, however, and she is serving a one-year jail sentence. Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit in Chicago expressed skepticism. "I find this whole prosecution mysterious," she said at a hearing on Ms. Prude's case. "I don't know whether the Eastern District of Wisconsin goes after every felon who accidentally votes. It is not like she voted five times. She cast one vote."

As a result of five years of investigations, about 120 people have been charged, and 86 convicted as of last year. Most of the charges stemmed from forms filled out incorrectly or eligibility rules misunderstood. An assistant US attorney in Miami told the Times that many cases there involved mistakes by immigrants. In Wisconsin, where charges were brought against people who filled out more than one voter registration form, and felons who apparently did not realize that they were prohibited from voting, prosecutors have lost twice as many cases as they have won.

Fired US attorneys David Iglesias of New Mexico, and John C. McKay of Seattle, Washington, chose not to bring charges in individual so-called voter fraud cases. Iglesias's complaints reportedly reached Bush. Interim or permanent replacement prosecutors in four states are lawyers who worked on election cases in the Justice Department or for the Republican Party.

Combating so-called "voter fraud" became a Justice Department priority shortly after the 2000 election. Then-Attorney General John Ashcroft invited Hans Spakovsky, a lawyer who had volunteered his services during the Florida recount, to help run the Justice Department's voting rights unit. When the Texas Congressional redistricting plan was sent to the Justice Department for review in 2003, Spakovsky overruled the staff judgment that it discriminated against African-American and Latino voters. Similarly when staff recommended rejection of a Georgia voter identification measure, Spakovsky allowed it to stand. The Georgia measure and part of the Texas plan were were later struck down by Federal courts.

The Republican National Committee and its state organizations promoted the "voter fraud crackdown." Republican officials in Florida, New Mexico, Pennsylvania and Washington trumpeted accusations of fraud purportedly involving thousands of votes. Events in Wisconsin were fairly typical. In August 2005 Rick Graber, former chairman of the Wisconsin Republican Party, held a press conference outside the home Milwaukeean he said had voted twice. and decried the voter registration system. "It is a system that invites fraud," he said. "It's a system that needs to be fixed." Only fourteen people of the hundreds suspected of fraud were ever charged by the feds. The US attorney for Milwaukee would only say that there was insufficient evidence to bring other charges. No one from the house where Graber held his press conference was charged. And of the fourteen charged -- mostly poor, black, Democrat, and first-time voter -- only five were convicted.

"And We Was Like The Roman Empire..."

Gonzales's testimony and statements contain the implication and assertion that the Attorney General's office is not aware of details of district operations, and that the firings of US attorneys for political reasons constituted an insignificant personnel matter with no real consequences. According to former federal prosecutor Elizabeth de la Vega, both claims are false. The Bush administration, wrote de la Vega, increased the already onerous requirements to report to and obtain permission from the Justice Department on everything from indictments to plea agreements to sentencing recommendations on what she calls an "unprecedented variety of cases." And in some cases, such as the pre-Christmas 2006 mass arrests of illegal aliens, the Justice Department dictated charges, plea agreements, and sentences. For cases likely to generate Congressional or media interest, the US attorney must file reports immediately concerning any "major developments," which include even procedural motions. US attorney for San Diego Carol Lam filed such a report on May 10, 2006, advising Gonzales's office that search warrants were about to be issued in the Randy "Duke" Cunningham bribery case, and the next day Kyle Sampson wrote in an email message about the "very real problem we have right now" with Carol Lam,"

De la Vega also disputed Gonzales's position that the replacement of a US attorney would not interfere with with public corruption prosecutions because they are handled by career prosecutors. Before a case can begin, an information form, known informally as a "green sheet" must be completed, which triggers the requirement to report to "appropriate officials," that include the assistant attorney general of the relevant department, and the office of the attorney general. As de la Vega put it, "... knowing that the Bush administration has apparently removed its own Republican appointees for investigating Republicans, anyone with a brain and a mortgage would think twice - heck, even three times - before filling in the blanks on that theretofore innocuous form." Once the case is open, there are still many opportunities for the US attorney to delay or derail a prosecution: forms can simply not be signed, the assistant attorney handling the case can be given cases requiring immediate action, agents can be reassigned, additional evidence can be required, etc.

In the Clinton administration, the independence of the Justice Department from the White House was enforced by strict limitations on communications between the two entities. Four people in the White House (the President, Vice President, chief of staff, and White House counsel) could speak with three people in the Justice Department (the Attorney General, the Deputy Attorney and the Associate Attorney General). In the Bush White House, by contrast, as reported by the aptly named Senator Whitehouse of Rhode Island, 417 people can speak with 30 different people in the Justice Department. In the words of former Nixon White House counsel John Dean, "the Department of Justice has become a mere political appendage of the White House."

A mutual friend of Bush and Gonzales described Gonzales's close relationship to Bush as "more like a brother than a lawyer." Bush's nickname for Gonzales -- 'Fredo' -- is emblematic of this. Gonzales will not resign, says Dean.

I have varying degrees of knowledge about virtually all of the modern Attorneys General, or those who have served over the past five decades -- the seventeen men and one woman who preceded Gonzales in the office he now occupies. They were all highly competent and able people. I cannot recall, nor find any evidence, that Congress ever questioned the competence of any of these former attorneys general. While Congress did not always agree with their policy decisions, no one thought these prior attorneys general were out of their league, nor that they were damaging the Justice Department by their inept management.

Notwithstanding the lack of support Gonzales has in the Congress, and the damage he is causing the Bush Administration, he is not going to resign, and Bush is not going to fire him. Rather, Bush is going to, in effect, create a new, and far lower, standard for acceptable conduct by attorneys general. Bush is openly embracing the "Peter Principle" - the management theory that says that, as people within an organization advance to their highest level of competence, they will then be further promoted to, and remain at, a level at which they are incompetent. This has clearly occurred with Alberto Gonzales.

"I can handle things! I'm smart!" Fredo Corleone says to Michael....


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de la Vega, Elizabeth "The Problem With Alberto" 22 Apr. 2007

1As noted above, 'Fredo' is one of Bush's nicknames for Alberto Gonzales. Movie fans will recall that in Godfather II, Fredo is Michael Corleone's somewhat simple older brother, whom Papa Vito passes over when designating Michael as his successor and new head of the family. Fredo is tempted into informing on Michael's whereabouts, thereby facilitating an assasination attempt. In Havana to meet Jewish gangster Hyman Roth, Michael realizes that Fredo betrayed him. When Vito's widow Carmella dies, Michael is released from his pledge to protect Fredo. In the final montage of assassinations, Fredo is killed while fishing on Lake Tahoe. The section titles in this article are all taken from the IMDB memorable quotes page for Godfather II.

Thanks to Chris Kee for pointing out Elizabeth de la Vega's article.

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