News & Politics

Gonzales Pleads the Ken Lay Defense

Alberto Gonzales is trying to explain away explosive revelations in the U.S. attorney scandal by using the "aw, shucks," or "I didn't know" defense that the late Kenneth Lay of Enron so famously used.
With no apparent shame, Attorney General Alberto Gonzales pleaded the Ken Lay defense -- also known by his own prosecutors as the "Aw, shucks" defense or the " deliberate ignorance" defense -- in his explanation of the political executions of United States attorneys by his office and the White House.

Gonzales tried to avoid any responsibility in the growing scandal by using the word " responsible" while ducking its consequences. He said, "I accept responsibility for everything that happens here within this department, but when you have 110,000 people working in the department, obviously there are going to be decisions made that I am not aware of in real time."

The late Kenneth Lay of Enron fame attempted this during his federal trial. So did former WorldCom exec Bernard Ebbers. When Lay tried it, federal prosecutor Kathryn Ruemmler said, "Over and over again, Lay chose not to ask hard questions. He did so trying to stick his head in the sand, and the law says you cannot do that."

In the WorldCom case, prosecutors mocked Ebbers for claiming he was an accounting ignoramus who didn't know about the fraud his underlings were committing. Juries didn't buy it with Lay, and they didn't buy it with Ebbers.

Now Gonzales faces the hopeless task of convincing his own criminal prosecutors that principles that apply to other defendants should not apply to their boss -- him. He won't face this awkwardness in a courtrooom, yet. He's not charged with anything. But what will he say to them in the hallways of the Justice Department?

Gonzales is trying to explain away the explosive revelations in the U.S. attorney scandal. The White House, including President Bush and chief conspirator Karl Rove, and DOJ have been forcing the resignation of federal prosecutors they themselves appointed but who follow the law rather than the partisan political directives of the power-mad hacks in charge of the government.

Gonzales' defense is not original. It is the standard practice of many contemporary leaders, from presidents who blame anyone but themselves, including the public, for their military follies and policy debacles, to CEOs. Chief executives love to bask in the limelight as square-jawed, determined, take-charge kind of people, until massive fraud is found on their watch. Then it's, "Aw, shucks. I didn't know."

They are paid to know.

A good rule of thumb: Whenever someone embroiled in controversy starts tossing around the words " accountability" and "responsibility," it is time to beware, because "fall guys" and scapegoats are not far behind. There's an important difference here, by the way. Fall guys are involved, and are probably guilty subordinates in the scandal at hand. Scapegoats, like the sacrificial animals they are named for, are innocent. But either will do if it stops the buck well short of the boss' desk.

The British, always willing to discuss even excuse-making with stiff upper lips, specifically jettisoned a century-long tradition of " ministerial responsibility" in favor of a less burdensome and more convenient defense. The American vernacular, "aw, shucks", won't do for the Brits. Let's call it the "Righto" defense of deliberate ignorance. Immediately after a British Minister of Agriculture was forced to resign in 1954 because of a land scandal on his watch, Home Secretary, Sir David Maxwell-Fyfe, penned the new code of conduct: "The Minister is not bound to defend action of which he did not know."

The theory is, everything is so darned complex (what with so many employees and all) that responsibility is best kept out of the quarters of the minister, or the Queen, or the chief executive, or the Attorney General, or the President.

I can' t think of a more fitting context in which to invoke the overused concept of the paradigm shift. This international blame shifting shift took place just a couple of years after Harry Truman laid his famous desk plate -- "The Buck Stops Here!" on his own desk. Perhaps his successors worried that the sign was more omen than ornament; it was made for Truman in a Missouri prison.

Quite often the term "accountability" is deployed to stop the buck well short of the ultimate responsible party's desk. It is an almost black-magical use of the language. When Bush talks of holding teachers "accountable," he manages to banish from the realm the possibility that either he or his policies might one day face moral reckoning. We see this sleight of hand everywhere these days. In the Walter Reed scandal involving the systematic neglect and mistreatment of military veterans injured in Iraq. With the Abu Ghraib affair, with Scooter Libby, with the Jack Abramoff/Tom DeLay scandal.

The pattern is always the same. And when we gaze at the pattern, responsibility disappears in a kind of optical illusion in which the longer and harder you look the more difficult it is to see the real picture.

There is no accountability for the concept of accountability. That is the trouble with the notion of "accountability," which is usually attached to some threat of punishment. Accountability depends upon some agreement about who is ultimately responsible. Otherwise, it becomes little more than a convenient label. Like a scarlet letter. The press, when they hear official incantations of responsibility, need to pierce the attempted illusion. When elected officials are doing everything they can to hide from their responsibilities, we need to keep stripping away the disguises, keep peering behind the magic doors and within the magic boxes. We need to keep them honest. And responsible.

The narrative arcs of political scandals that end with consequences for the person of ultimate responsibility -- Nixon with Watergate, for instance -- usually include persistent advocates and antagonists who simply refuse to accept fall guys and scapegoats. The public relations trick of those hiding from responsibility is to end the novel early by sending a hapless stand-in to the gallows. This has worked to a large degree with Abu Ghraib. Today the Bush Administration is busy trying to scapegoat the entire American public for the debacle in Iraq. It's the old "stabbing-our-troops-in- the-back" gambit, accusing those who see the folly of the war and who want to save our young, military men and women. But that's another story.

So far, progressive critics, Democratic officials, and mainstream journalists are doing just what they should do with regard to the Justice Department scandal: They are refusing to allow those at the top to avoid responsibility. They are following every lead up the chain of command.

That is the only way to keep responsibility assigned to those who ask us for our trust but who too easily forget that every freedom comes with a responsibility. Unless we persist, day in and day out, our wannabe blameless elect officials will make our freedoms disappear along with their own responsibilities.
Glenn W. Smith is a Senior Fellow at the Rockridge Institute.
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