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White House Underestimated the Opposition

By Kimberley Strassel

If President Bush is looking for an early Christmas present for his top Justice appointees, he could do worse than Sun Tzu's "The Art of War." Attorney General Alberto Gonzales's edition might even be unabridged.

Call the administration's handling of the eight fired U.S. attorneys what you will (and many adjectives come to mind), at bottom this is a story of a White House and Justice Department that have yet to understand how rocked is their world. Their GOP brethren are no longer running Congress, and the Democrats who took over want blood. The administration made its first, costly, mistake by underestimating the opposition.

Democrats can't be accused of the same naivete. They understood on Nov. 8 that their real majority power would rest in investigations and the almighty subpoena. Sens. Dianne Feinstein and Chuck Schumer began maneuvering their troops in January--a hearing here, a press conference there--patiently waiting for an opportunity to escalate the attorneys affair. They got their opening when Deputy Attorney General Paul McNulty made the amateur-hour error of testifying that the dismissals were performance-related.

That phrase turned what should have been a minor skirmish over presidential prerogatives into a bloody battle over allegations of cronyism and coverups. And the real humiliation for the White House is that it never had to be this way.

Presidents--yes, even President Bush--have a right to shape a broad prosecutorial agenda, and to demand their appointees pursue those priorities. This isn't just acceptable, it's desirable. U.S. attorneys have few enough checks on their power, without also laboring under the delusion they don't have to answer to their boss. In this case, the administration had more than enough philosophical differences with the fired attorneys--on issues of voter fraud, the death penalty, obscenity--to justify replacement.

What it failed to consider was the new political landscape. A White House and Justice Department on their game, scanning the Schumer-Feinstein battlefield ahead, would have sent Mr. McNulty to the Hill with a very different script. The deputy AG would have laid out the president's absolute right to hire and fire, and pleasantly noted that while the eight attorneys were all fine people, the chief was making a change. He would also have declined to serve up any gory specifics of the administration's personnel decisions. If details had later leaked, the administration would have at least staked out a principled position, and an honest one at that.

Instead, Mr. McNulty's "performance" line inspired the fired prosecutors to defend themselves, namely by dishing up nefarious reasons for their pink slips. Congressional Democrats were able to spin those accusations further after emails blew a hole through Mr. McNulty's testimony. Instead of standing on principle, the administration found itself defending against allegations it had canned attorneys to stop politically sensitive investigations, or to reward cronies with jobs. Mr. Gonzales also had to admit "incomplete information" had been relayed to Congress. That alone was enough to inspire Mr. Schumer and House Judiciary Committee pit bull John Conyers to demand the testimony of top officials, and to guarantee many more weeks--if not months--of a drubbing.

The genesis of these flubs is still unclear, and Democrats have their guns aimed at lofty targets, namely Karl Rove. But it's difficult to see how the competence buck doesn't stop at Justice. Mr. McNulty and Mr. Gonzales are both pleading ignorance, and the official rap has so far fallen on Mr. Gonzales's chief of staff D. Kyle Sampson. But someone ultimately has to take responsibility for running the outfit. Mr. McNulty's defense, as it were, seems to be he has no clue about what happens in his own department and admitted as much in sworn testimony.

Yet if anyone should know how dangerous it is to hand Democrats an excuse to investigate, it's Mr. Gonzales. He was White House counsel back when the Valerie Plame affair erupted, and presumably signed off on President Bush's early and unconsidered remark that a "crime" may have been committed. By the time anyone figured out no such thing had happened, Democrats had hounded up a special prosecutor to turn the case into a three-year referendum on the Iraq war, and Scooter Libby was on his way to a conviction. It was a Gonzales-McNulty special that led to the other big congressional meltdown of the past year--the FBI raid of Louisiana Democrat William Jefferson's legislative offices.

The White House showed some early signs of threat awareness after the election when it drafted Fred Fielding as White House counsel, replacing Harriet Miers. Mr. Fielding is a wartime consigliere, a veteran of the Nixon and Reagan years, and a man who understands subpoenas. Yet he only got up and running recently, and in any event does not appear to have received the attorney-firing memo. He's now playing clean-up, and as part of that duty may want to consider sending a few of his more seasoned pros to camp out at Justice and prevent further fiascos.

Especially given how much collateral damage has come from the attorneys flap so far. One early casualty has been the president's right to shape a prosecutorial agenda. The administration's ineptitude has given the left an opening to claim the White House is politicizing justice. It matters little that many voters put Mr. Bush in office precisely because they expected his administration to take a harder line on voter fraud or pornography rings. The administration will now find it harder to maneuver in this area.

More concerning is the damage to Mr. Gonzales himself. The AG is the front man for most of the White House's more vital, if controversial, anti-terror policies--from wiretapping to detainees. Democrats strongly object to many of these programs and know only too well that the more they bruise and bloody Mr. Gonzales in this fight, the harder it will be for him to effectively take tough stands down the road. They've already had an early taste of victory, when the AG last week agreed to give up his new power to appoint interim attorneys--a power designed to aid terrorism prosecutions.

Mr. Bush is sticking with Mr. Gonzales for the moment, and that may make sense. For all the noise of this affair, there's still no there there, and Democrats will have to dig up dirtier dirt to force a resignation. But if the White House is smart it will learn from this and start taking the opposition to heart.

Ms. Strassel is a member of The Wall Street Journal's editorial board.

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