Now that the Washington Post has revealed that Alberto Gonzales perjured himself while testifying before a Senate committee in 2005 (piling on top of his other perjuries), I will now offer the Ultimate Prediction on what will happen.
Likely? No. But if it happens, you heard it here first:
1. The House of Representatives will impeach Gonzales.
2. The Senate, with the cooperation of Republicans looking to distance themselves from Mr. 26% Approval in the upcoming election, will remove him from office.
3. Bush will then give Gonzales a recess appointment as Acting Attorney General (which lasts until the end of the current Congress).
4. This recess appointment is illegal. Article I, Section 3, Clause 7 of the Constitution forbids anyone impeached and removed from “hold[ing] . . . any Office of Honor, trust, of Profit under the United States.” (Impeached federal judge Alcee Hastings can serve in Congress probably because a legislative representative is not an Officer. While it is true that being Bush’s AG hardly constitutes an Office of Honor, this probably carries little legal purchase).
5. The Roberts Court, in a 5-4 majority opinion written by Justice Kennedy, will rule that no one has standing to sue over the recess appointment.
I think that a lot of the creation of the Imperial Presidency will happen in this way. Bush will break the law, and the Supremes will stop anyone from challenging it. Expect the same with the subpoenas and executive privilege.
Author: Jonathan Zasloff
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees.
Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses.
Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.
View all posts by Jonathan Zasloff