Dear Reader,

It was quite the tableau. There sat the distinguished white-haired federal judge opposite a bank of U.S. senators on the Judiciary Committee. The issue was whether this longtime respected jurist should be confirmed as the next Attorney General of the United States. The question was especially fraught on this occasion because of the dilapidated state of the Justice Department, its independence in question, with the nominee’s predecessor accused of politicizing the agency, serving the president’s interests over the public’s, and even removing U.S. Attorneys for partisan reasons.

The nominee, who was ostensibly chosen for his integrity and perceived ability to restore the independent reputation of DOJ, pledged to block political meddling at the Department, insisted that partisan politics was unacceptable in law enforcement decision-making, and assured senators he would be more arms’ length from the White House than the previous Senate-confirmed occupant of the office.

The scene was October of 2007, and the man in the seat was the former chief judge of the Southern District of New York, Michael B. Mukasey. Yes, I guess history does rhyme. Front and center at Mukasey’s confirmation was the need for a restoration at the Justice Department. I had just spent the better part of that year leading a Senate investigation into the infusion of politics at the agency I loved and had served and, unbeknownst to me, would serve again.

Our investigation prompted at least three other investigations – one by the House of Representatives, one by the DOJ Inspector General, and another by the Office of Professional Responsibility. The Department was forced to fix its hiring practices – in the Honors Program, in the Summer Law Intern Program, and in the Civil Rights Division. During the pendency of the Senate investigation, most of the DOJ leadership resigned under a cloud – the Deputy Attorney General, the Associate Attorney General, the chiefs of staff to both the DAG and the AG, and finally at the end of August 2007, the AG himself departed.

How did DOJ get to such a point? Well, it turns out that Mukasey’s predecessor was also a former judge, Alberto Gonzales, but he appeared not to have developed either Mukasey’s or Merrick Garland’s independent spine. There may be a perception that judges, who in the federal system sit in the most politically-insulated branch of government and are duty-bound to be fair and open-minded in considering cases and controversies, who literally sit above and apart from the other courtroom participants, know to resist politics and patronage and can carry that spirit from the bench to the highest Justice Department perch.

But these qualities and instincts may not have been so nurtured in Gonzales, who, despite being a former judge on the Texas Supreme Court, was not in the federal system, was not life-tenured, and was elected to that office (after first being appointed by his friend Governor Bush).

The concerns about Gonzales’s independence were fully developed and argued during the confirmation process. Rewind 33 months back from Judge Mukasey’s confirmation hearing, to January 2005, right at the start of Bush’s second term. It was my first week on the job as chief counsel to Senator Chuck Schumer and the first order of business was what? Consideration of the nomination of Gonzales — Bush’s best friend and White House counsel — to be Attorney General. The chief confirmation concerns about Gonzales, whom many Democratic senators personally liked, were two-fold: his closeness to President Bush and his involvement in condoning certain treatment of detainees in the wake of 9/11. (Later, Mukasey would also inflame opposition because of his equivocal answers about the legality of waterboarding, but there was no real issue about his relationship with Bush.)

Much of the debate over Bill Barr and Merrick Garland has echoes in the debates over Alberto Gonzales and Michael Mukasey – swirling questions about loyalty versus independence, about politics versus the rule of law.

In the end, Gonzales’s deep friendship with President Bush and the nominee’s inability to reassure on this point, along with other misgivings, made him an unsuitable pick for AG in the minds of 36 Democratic senators, including Schumer.

Only days into the job, I watched the Senator lay out his reasons for voting against Gonzales. Among other things, he said, “Even if you are, as Judge Gonzales is, a good person with top-notch legal qualifications, you still must have the independence necessary to be the Nation’s chief law enforcement officer. The Attorney General is unlike any other Cabinet officer. For all those other Cabinet officers, simply carrying out the President’s agenda is enough. But to be a good Attorney General, unqualified deference to the President is not enough.”

Years after that experience, just this morning, as I searched out that floor speech I helped craft for Senator Schumer to mark his nay vote, I realize the most trenchant line about the nominee was also an accidental haiku:

It is hard to be

a straight shooter if you are

a blind loyalist.

It is hard to be a straight shooter if you are a blind loyalist, indeed. A blind loyalist is what Gonzales turned out to be, along with having poor judgment and leadership skills.

At a time of deep crisis for the Department of Justice, we should be grateful that Merrick Garland, denied a Supreme Court seat, gives every indication of being a straight shooter and a loyalist to the Constitution above all else.

My best,

Preet

In Body Image

Vaccination Ethics

By Sam Ozer-Staton

The race to receive the COVID-19 vaccine, and the persistent challenges around its distribution, have raised a set of novel medical ethics questions. 

Earlier this month, an article in New York Times told the story of Hasan Gokal, a Houston-area doctor who, at the tail end of a day-long vaccination event, found himself with an open vial of quickly-expiring vaccine doses. He then scrambled to find people to inoculate.

Faced with just six hours before the doses would become unusable, he was able to vaccinate a set of acquaintances and strangers, including, according to the Times, “A bed-bound nonagenarian. A woman in her 80s with dementia. A mother with a child who uses a ventilator.”

Minutes before the final dose was set to expire, he inoculated his wife, who has a pulmonary disease that leaves her short of breath.

For that, Dr. Gokal was fired from his government job as medical director for Harris County’s COVID response team, and charged with stealing 10 vaccine doses worth a total of $135.

The Harris County District Attorney, Kim Og, specifically charged Dr. Gokal with “Theft By a Public Servant,” a Class A Misdemeanor that carries a penalty of up to a year in jail and a $4,000 fine. According to Texas statute, theft becomes a higher offense when “the actor was a public servant at the time of the offense and the property appropriated came into the actor’s custody, possession, or control by virtue of his status as a public servant.”

Og, the District Attorney, said in a statement: “He abused his position to place his friends and family in line in front of people who had gone through the lawful process to be there. What he did was illegal and he’ll be held accountable under the law.” 

A Harris County judge, Franklin Bynum, threw out the case for lack of probable cause. In a blistering order, Judge Bynum wrote: “In the number of words usually taken to describe an allegation of retail shoplifting, the State attempts, for the first time, to criminalize a doctor’s documented administration of vaccine doses during a public health emergency. The Court emphatically rejects this attempted imposition of the criminal law on the professional decisions of a physician.”

Dr. Gokal may no longer face criminal charges, but his firing — and the firestorm that it set off — could be a harbinger of things to come as doctors around the country face increasingly difficult ethical calculations. Bill Healey, a New York-area employment attorney, told Law & Crime that he expects more “Dr. Gokal-type predicaments [to] inevitably arise.” 

Would a doctor in Gokal’s position have a strong case for wrongful termination? According to Healey, that depends largely on the state in which the case was brought. In Texas, for example, Dr. Gokal’s chances are slim; he would need to establish that it would have been illegal for him to follow his employer’s stated protocol, which was to discard remaining usable doses. 

But other states give more latitude for a petitioner in Dr. Gokal’s position to establish that they were acting within the dictates of public policy when they were fired. According to Law & Crime, some states go even further, essentially giving cover to employees who can prove that they were broadly acting in the public interest: “In New Hampshire, for instance, ‘public policy’ need not expressly be something contained in a law or regulation; ‘non-statutory [public] policies’ can — and sometimes do — suffice.” 

Should Dr. Gokal have been fired for violating formal protocol, even if what he did was ostensibly in the public interest? Should he be entitled to wrongful termination damages? And more broadly, should medical professionals like Dr. Gokal be offered additional legal protection when making determinations in a public health crisis?

Write to us at [email protected] with your thoughts or reply to this email.

In Body Image

Listen to episode four of Doing Justice, “Long Shot Justice,” on Apple Podcasts, Spotify, or wherever you get your podcasts. The episode tells the story of SueAnn, a sex worker who was brutally assaulted and robbed in her own home. SueAnn was almost denied her day in court — until one SDNY prosecutor connected the dots and found the final piece of evidence to convict her attacker. And don’t miss the bonus episode for Insiders, where Preet discusses the episode with CNN global affairs analyst Bianna Golodryga.

Listen to Stay Tuned, “COVID Counselor,” where Preet interviews Andy Slavitt, Senior Adviser to the White House COVID response team.

Listen to Third Degree, the new podcast from Elie Honig. In the latest episode, “Return of the DOJ,” Elie recaps Merrick Garland’s confirmation hearing, and gives a preview of what a Garland-led DOJ might look like.

Listen to Note from Melissa, “The Fourteenth.” 

Listen to CAFE Insider, “The Work Continues,” where Preet and Anne break down the Supreme Court’s decision to permit grand jury access to former President Donald Trump’s financial records, Merrick Garland’s Attorney General confirmation hearing, and more.

FOLLOW

Heather Cox Richardson is one of the country’s most respected historians, and the author of the popular newsletter, “Letters from an American.” She joined Preet on Stay Tuned in June of last year. For insightful historical analysis, follow her @HC_Richardson.

That’s it for this week. We hope you’re enjoying CAFE Insider. Write to us at [email protected] with your thoughts, suggestions, and questions.

Edited by Tamara Sepper

The CAFE Team: 

Tamara Sepper, Adam Waller, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Jennifer Korn, David Tatasciore, Matthew Billy, and Nat Weiner.