COMMENTARY There Is Only One Executive By DAVID B. RIVKIN JR. and LEE A. CASEY August 29, 2007; Page A15 Anyone who thought that Attorney General Alberto Gonzales's resignation would improve the Bush administration's relations with Congress will be disappointed. The only unifying theme congressional Democrats have exhibited since taking control last January is an unremitting hostility towards President Bush in particular, and executive power in general. This animus has manifested itself in a series of pitched battles over the National Security Agency's Terrorist Surveillance Program (TSP), the detention of enemy combatants at Guantanamo Bay, presidential signing statements and the dismissal of U.S. attorneys, all of which shaped the anti-Gonzales crusade. Although the attorney general was instrumental in framing the administration's position on each of these issues, all are critical elements in a larger dispute over the proper roles of Congress and the president in our constitutional system, and his departure does not change this fact. Whoever the new attorney general is, he or she must be just as determined to defend, beginning with the confirmation hearings, the president's legitimate constitutional authority against congressional encroachment as was Alberto Gonzales. The Constitution's framers wanted the federal government to have a strong executive power. Although few Americans were ever interested in a king, the country's experience under the Articles of Confederation suggested that Congress could not and should not exercise both legislative and executive authority. If the United States was not actually on the verge of dissolution -- and some at the time certainly thought this possible or even likely -- it had no effective government under the Confederation capable of defending the country's interests abroad or of addressing national concerns at home. The new Constitution remedied this situation by providing for a single, independently elected president who would exercise the executive power. As Alexander Hamilton later explained in The Federalist Papers: "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: It is not less essential to the steady administration of the laws." "A feeble executive," Hamilton warned, "implies a feeble execution of government." And, he noted, the very first "ingredient" constituting energy in the executive was this "unity" of authority in a single individual. Accordingly, the theory of a "unitary executive," which has become a particular bugbear to the Bush administration's critics, is nothing more than Hamilton's prescription put into practice by the Constitution. Because the Constitution grants executive power to the president alone, Congress cannot "balkanize" the office by carving out areas of executive authority -- such as responsibility for federal prosecutions -- to be vested in officials who are not ultimately subject to the president's direction and control. Thus, high-level officials like U.S. attorneys serve at the president's pleasure, and can lawfully be fired for "political" reasons. Similarly, the executive branch is a co-equal branch of government, and Congress cannot micromanage the president's exercise of his discretionary authority, particularly in the area of foreign and defense policy, or assign this role to the courts. Nor can Congress use its oversight power, which has been implied from the power to legislate rather than from any supervisory authority, as a means of controlling the president or the executive branch in general. As a result, any congressional demands for executive branch information must be grounded in a legitimate lawmaking need as part of legislative process, and balanced against the president's legitimate need for confidentiality in deliberations. Notably, it was Congress, and not the president, who the framers feared would usurp power from the other branches of government or the states. As James Madison explained during the Convention itself: "[e]xperience had proved a tendency in our governments to throw all power into the Legislative vortex." And, as in so many things, they were prescient. From efforts to control the conduct of the war on terror and the campaign in Iraq, to demands for White House materials relating to the removal of several U.S. attorneys in 2006, the current Congress has directed its efforts at enfeebling the president, and the presidency. Building upon this unfolding interbranch confrontation, Congress's efforts to undermine presidential authority are likely to play out with a vengeance in the weeks to come. Like other cabinet officials, the attorney general is subject to the senatorial confirmation process and senators have asserted themselves in the past by demanding commitments or concessions from a nominee (and his or her White House sponsors) on important legal and political issues. Frequently, they were indulged by administrations anxious to confirm their nominees. Today, there is every reason to believe that the new attorney general's confirmation hearings will be used by the Senate Judiciary Committee as a platform to compress and prevail on all of the legal issues, from the USA Patriot Act and the TSP, to the U.S. attorney firings and Guantanamo Bay, that have dominated their anti-Bush agenda. They will want their pound of flesh, but the White House should not pay. Instead, it should use the hearings as an opportunity to defend first principles and the policy choices the president already has made. In addition, the administration should unequivocally reject any Senate demands for the appointment of a special prosecutor to "investigate" the 2006 U.S. attorney firings, or allegations that Attorney General Gonzales "lied" to Congress when discussing the TSP. First, there is no substance to the claims that Mr. Gonzales, or anyone else, acted improperly in removing the U.S. attorneys -- who are political appointees and can properly be fired based on political considerations. The administration's opponents have been trying to find evidence of wrongdoing -- a "politicization" of the Justice Department -- for months now and have produced nothing more than speculation and innuendo. The White House should aggressively debunk the myth that either the attorney general himself or the U.S. attorneys should be somehow independent of the president -- a key Democratic talking point in the last several months. Congress should be reminded that all the authority U.S. attorneys exercise, including and especially prosecutorial discretion, ultimately belongs to the president and its exercise can be properly directed by him. Similarly, claims that Mr. Gonzales committed perjury are groundless. Last spring, he testified before the Senate Judiciary Committee on highly classified intelligence programs, including the TSP. He chose his words carefully, so as to be truthful and to protect classified information. He stated correctly that there was no dissent among the Justice Department's leadership over the TSP, because it had been revised by those very officials to ensure its legality. An earlier program, doubtless similar to the TSP and over which there were objections, remains classified and Mr. Gonzales properly insisted on speaking only to the TSP that had been publicly acknowledged. While his statements appeared to differ from those of other officials, a careful examination of his testimony reveals no discrepancies in any material facts -- merely differences in descriptive terms used by different people. This is not perjury, it is life. Second, the "special" or "independent" counsel is a highly suspect institution. As Justice Robert Jackson, who himself served as attorney general and the chief Nuremburg prosecutor, explained long ago, the interests of justice are always at risk when a prosecutor is told who to investigate, rather than what offenses to pursue. The natural, and perhaps inevitable, result is a determination to fit a crime to the suspect, rather than find a suspect to fit the crime. This tendency is magnified when a special counsel is appointed because he does not have the perspective of an ordinary prosecutor -- who must balance priorities and assign scarce resources -- and his success or failure is measured based on whether a prosecution actually takes place. This is not the pursuit of justice, but the recipe for a political witch-hunt -- as was proven again and again in the 1980s and 1990s, before the independent counsel statute lapsed and went into a well-deserved legislative oblivion. Overall, the next attorney general's confirmation hearings offer the administration a unique opportunity: to defend the president's constitutional authority and policy choices to the American people, to reveal how Congress has attempted again and again to usurp his legitimate power, and to refuse any constitutionally suspect compromises with the Senate. If, as a result, it refuses to confirm a worthy attorney-general nominee, President Bush can properly state that the Democrats are playing politics in the middle of a war. This is a fight he can and should win, revitalizing his presidency in the process. Messrs. Casey and Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush.