George W. Bush’s Attorney General Is Worried About Trump

As the onetime White House counsel and attorney general under President George W. Bush, Alberto Gonzales was known as an energetic and sometimes controversial supporter of expansive presidential powers, particularly in the realm of national security. He’s also no fan of Donald Trump.

So what would he make of the Supreme Court’s recent ruling granting broad immunity to the president, including significant protection to Trump from prosecution in the Justice Department’s case alleging that he tried to steal the 2020 election?

In an interview with POLITICO Magazine conducted before the assassination attempt on Trump, Gonzales largely sought to square the circle: Even as he suggested the court’s ruling largely affirmed the need for a president to make tough decisions, he expressed dismay about how Trump might use the authority for malign purposes if he returns to the White House.

“Why would anyone think, given his record, that he would not abuse the power of the office?” Gonzales said. “I think everyone should have concerns about possible abuse if he becomes president of the United States again.”

We also spoke at length about the implications of Trump returning to power after promising to use the presidency — and the Justice Department — to go after his perceived political enemies, and about how Special Counsel Jack Smith and Attorney General Merrick Garland may be approaching the case against Trump now.

This interview has been edited for length and clarity.

What was your reaction after you read the Supreme Court’s opinion in the immunity case?

My initial reaction was that the justices understand the importance of respecting a president’s decision-making. I wasn’t surprised in terms of that outcome, because five of the six of the majority worked in the executive branch — in particular, people like [John] Roberts, [Brett] Kavanaugh, [Neil] Gorsuch, [Samuel] Alito. A president needs to be able to make these kinds of decisions on behalf of the country without fear of prosecution.

But let me quickly add that if we as voters do our job correctly, and we elect a person with courage and integrity, they’re always going to do what is necessary to protect our country, and they’re always going to try to find a way to do it in a way that’s consistent with the Constitution and consistent with the law.

So on one hand, I’m not sure the decision was really necessary. On the other hand, I think it’ll be reassuring to some people who are in the office of the presidency and have to make a tough decision and are worried that the next administration may come after them.

But if you understand how the White House works, virtually every decision the president’s going to make is going to be supported by a legal opinion — either by the White House counsel’s opinion, a Department of Justice opinion, by agency lawyers. So when they’re relying upon an opinion of the lawyer, the standard practice of the Department of Justice is that there’s not going to be a prosecution for wrongdoing, even if the opinion is later found to be ridiculous or not supportable.

Now of course, if the president can order the Department of Justice to prosecute someone in any event, that’s a different story. And that’s the one thing that I do have some concerns about.

You wrote a paper in 2018 about criminal immunity for presidents that broadly laid out an approach that appears similar to the one that the court used — distinguishing, at a very high level, between official acts and unofficial acts. Where do you see the points of difference between that general position and the specific position that the court adopted?

There are certain scenarios that I wonder what the answer is. For example, the pardon power in my judgment is unlimited — it’s limited, obviously, to federal cases that have been decided; it wouldn’t apply to a state decision.

But could the president freely say, “OK, I’ll pardon your son, if you give me a million dollars”? He’s exercising his core constitutional pardon power, but the question is, should that be OK? And shouldn’t the court inquire into the motive behind the exercise of that power? One of the motives would be that you want to enrich yourself. I have difficulty with the notion that you cannot inquire into the motive behind a presidential decision.

Now, I say that, but I also understand the court doesn’t want to get in the business of second-guessing the president of the United States. I get that. But it seems to me that there are certain obvious examples where we all would agree: “That’s just not right. It’s wrong to do this.”

I wish the court would have had the courage to at least point out that there could be certain instances where it was just so obvious that the motive is not one that we’re going to reward and that therefore the president would not enjoy immunity with respect to certain kinds of decisions that could arguably fall within the umbrella of core constitutional acts.

The court held that the president is also entitled to “at least a presumptive immunity from criminal prosecution for a president’s acts within the outer perimeter of his official responsibility.” And that presumption can only be rebutted if “the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.”

This is described as “presumptive immunity,” but if the standard to rebut it is so difficult to overcome, in practice it becomes absolute immunity, doesn’t it?

It’s pretty close. If it’s not absolute immunity, it is pretty close.

Approaching it from the viewpoint of someone who used to run the Department of Justice, whose job it is to prosecute criminal wrongdoing, it makes it extremely difficult for the department to do its job, quite frankly.

If I had to rate the scale, are we closer to absolute immunity as opposed to presumptive immunity, I’d say we’re a lot closer to absolute immunity.

This is another area where I think the court should have been more mindful — particularly, as I said earlier, because certain members of the court have experience in the executive branch. They know the importance of protecting the decision-making by a president, but they also know the difficult scenarios that may arise if you have someone making those decisions based upon motives that are not pure, that are not in the best interest of the country, but are motivated by either personal or political gain.

I can’t even imagine a scenario where President Bush would have done anything close to that. Even the most controversial decisions related to the war on terror were made by the president after the lawyers — the counsel’s office, the lawyers at the Department of Justice and lawyers at Department of Defense — all got together, talked about them, reached agreement on what the legal standard was, and provided that information to the president.

Now, we were told by the court, at least four times, that the advice that we gave the president that he had the authority to do certain things was wrong. So we weren’t perfect, but we did our best as lawyers to advise the commander-in-chief on what authorities he had to deal with this threat against our country.

Jack Smith’s indictment alleges that Trump and his co-conspirators attempted to use the Justice Department to conduct sham election fraud investigations and to encourage some states to replace their legitimate electors with fraudulent slates of electors so that Trump would win. The Supreme Court held that Trump is absolutely immune for this conduct as alleged because the president “may discuss potential investigations and prosecutions with his attorney general and other Justice Department officials.” It doesn’t matter that the alleged investigations were shams or proposed for an improper purpose.

Do you have any concern that immunity in this particular context might be abused by Trump or any other president now that it’s clear that their dealings with the attorney general are exempt from criminal scrutiny?

Yes, I do have concerns.

To me, the character and integrity of the president — and the person that we elect to that office — has become much more important.

The integrity and character of the attorney general and other senior positions in the executive branch have become much more important.

If the court truly cannot [review these areas of conduct], then it means that we really need to do a much better job as American voters in selecting the person that occupies the office. Now, the challenge is, how do you know for sure?

My judgment is that power is extremely intoxicating. That’s the most powerful position on Earth, and sometimes people are going to do things to hang on to that power for a second term, for example, or to further some other personal political goal.

Someone once said that your reputation is what your friends think about you, but your character, your integrity, is what God and the angels know about you. Sometimes it’s hard to really know how someone — once they’re in a position of power, once they have something at stake or there’s something they want to pursue — will exercise that power.

What is the functional difference at this point between the White House counsel and the attorney general? It seems to me that this allows the president to use the attorney general as another lawyer for the presidency rather than the head of the Justice Department.

Well, that may be a result, but I still believe that you’re going to have the usual protections. There’s a longstanding policy that limits communications between the White House and the Department of Justice on ongoing cases — not on policy, not on budget issues — but with respect to investigations and prosecution of cases.

That I think will continue and should continue. I think the American public needs to have confidence in the independence of the Department of Justice in terms of investigations and prosecutions.

I’m hopeful it doesn’t necessarily flow from this decision that that will change. A president invites all kinds of political scrutiny and trouble in trying to influence an investigation or prosecution.

Let’s hope that if enough members of Congress are alarmed by this decision, they will do a better job of oversight, understanding what is going on within the Department of Justice and calling up the attorney general — which is never much fun — to go to an oversight hearing on Capitol Hill and try to ask questions.

So there are other pressure points. I’m hopeful that even despite this decision, you’re going to have people of goodwill, both in the White House and the Department of Justice, doing their job, and you’ll have other actors — like the media, like Congress — doing their job in terms of putting pressure on the presidency [to ensure that he is] solely motivated by what is in the best interest of this country.

Do you do you think that if there’s a second Trump administration that those conventions will hold? Things like the no-contact policy between the White House and —

No, I don’t.

It tells me something that his vice president hasn’t endorsed him. His secretary of Defense hasn’t endorsed him. His former national security adviser hasn’t endorsed him. That says something, doesn’t it? They know him best. They’ve worked with him on these very difficult decisions that have to be made in the White House.

I don’t know him. I’ve only had one conversation in my life with him. But the fact that they won’t endorse him? They know something. They know something about this man.

And he’s not going to be constrained by the fear of losing a subsequent term in office. This will be it.

Why would anyone think, given his record, that he would not abuse the power of the office? Just based on the record, I think everyone should have concerns about possible abuse if he becomes president of the United States again.

He’s saying this stuff out loud, repeatedly. He is saying if he comes back into power that he will use the Justice Department to target his political enemies — the Bidens and the prosecutors who are coming after him.

He’s admitted, at least for day one, he’ll be a dictator. So absolutely, am I worried? You bet I’m worried.

To play devil’s advocate, there are some people who say that Trump used this sort of rhetoric during his first term and when he was running for election in 2016, leading the chants of “lock her up” about Hillary Clinton. He did make efforts to pursue various perceived enemies but prosecutors ended up stopping him at various points — or grand juries potentially, or juries during the Biden administration if you talk about the Durham investigation.

How concerned are you about him being more effective in a second term in pursuing those sorts of vendettas?

I think he will do a better job of appointing people who will protect him, and I think that’s why control of the Senate is so vital. If the Democrats control the Senate, they’ll be able to exert some level of influence.

If the Republicans take control of the Senate, then he’ll be free to appoint people that will do his bidding.

I don’t think this is outlandish or this is outrageous. I think it’s very likely that this is going to happen. He will know what he needs to be more successful in carrying out his objectives. From my perspective — just based on the record and based on comments that he’s made — I think it’s much more likely he’ll be more effective in a second term in terms of pursuing his agenda.

In the first Trump term, Congress didn’t prove to be much of an impediment to his agenda in this area. Are you more optimistic that in a second term, Senate Republicans will step up and provide some sort of opposition or bulwark?

No, not really.

The other thing we have to be mindful of is that if Donald Trump is elected in November, it means the American people support his vision and support his policies, his style.

I have to respect that. I wouldn’t like it, but that’s the way it works in this country. You have elections, and you accept the outcome of the election. At least some of us do. Obviously Trump didn’t accept the outcome of the last election.

You were among a group of former senior government officials who signed a brief last year emphasizing the importance of a speedy trial in the Justice Department’s 2020 election subversion case against Trump. What do you think the Justice Department should be doing with this case now?

It would have been beneficial to have all these cases — both civil and criminal — adjudicated before the election. I think the American people should have that information.

I doubt seriously there will be any resolution of any case now other than, of course, the New York case, and even there, there have been filings made to maybe throw out the verdict.

For me, it’s just a matter of the American people being as informed as possible about the qualifications of the candidates. It’s as simple as that, as basic as that. We’re not going to have that now.

As we all know, if President Trump is successful, the federal cases will go away, because he’ll direct the Department of Justice to dismiss those cases, and we won’t get any resolution of those matters.

Do you think the Justice Department waited too long to bring this case?

I’ve heard criticism about this. I assure you the last thing that Merrick Garland wanted were these cases against Donald Trump.

You don’t want to go after a political rival — the former president — unless you absolutely have to. You also are not going to do it unless you absolutely are convinced you’re going to win.

It takes time to get to that point, so I understand why it took time. To come right out immediately and seek an indictment and go to trial would have, in my judgment, been viewed as purely political. I think he did the right thing.

I think they wanted to be sure. They wanted to be careful. They wanted the American people to know: “We’re looking at this carefully. This is not a political witch hunt.”

Unfortunately, the calendar just didn’t work. President Trump was very successful in getting continuances, slowing things down.

I don’t think the Department of Justice would have allowed these cases to go forward unless they believed that they could be resolved before the election. It just didn’t work out that way. Things happen.

The more complicated the cases are, things happen. The judges sometimes aren’t cooperative. We’re seeing that in the records case in Florida.

It’s easy to second-guess Merrick Garland now and the Department of Justice now, but I can understand why it took them so long.

If you were the attorney general overseeing the Justice Department’s 2020 election prosecution — trying to move it forward before November in an appropriate way, in a manner consistent with the Supreme Court’s opinion , but also in a manner consistent with that imperative you described to try to present the American public with facts that they deserve before November — what would you be talking about the prosecutors doing?

What sorts of filings should they make? What sort of hearings should they be pushing for before November?

There’ll be a lot of deference paid to Jack Smith’s judgment. He knows the case. He knows the evidence. He will make the decision in terms of how to move this forward.

That decision or recommendation — basically, his decision, I would think — would be communicated to the attorney general. The attorney general would likely have questions. Merrick Garland would have to make a decision as to whether or not he agrees or disagrees with the decision by the special prosecutor.

But again, the special prosecutor knows the case. The department of course always has to be mindful that any decision is not viewed as being driven by politics.

If I’m the attorney general, I’m going to be very interested in knowing Jack Smith’s views about this case and whether he wants to move forward or not. Because if he doesn’t, am I going to order him to move forward? No.

So I think that’s going to be key. And of course, I would want to talk to the deputy attorney general, the head of the Criminal Division, to other senior folks within the department, about what Jack Smith is recommending: “This is what he wants to do. Are we OK with this?”

There’s political implications for telling a special prosecutor “No, we don’t want you to do that,” because he’s supposed to be independent. On a case like this, close to an election, I think Merrick Garland is certainly within his rights, and I would probably say has a responsibility, to have some input.

The special prosecutor may decide, “OK, this is what I’m going to do.” But I think he’s probably going to want to check with the attorney general to make sure he’s not going to be undercut in some way by Main Justice.

It’s a very unenviable position that they all find themselves in. When I first read the decision, I thought to myself, “If I were Jack Smith, I don’t really know what my next steps would be.”

One of the things that I found most striking about the opinion is the absence of a clear standard for Judge Chutkan to apply in terms of how to distinguish official versus unofficial conduct. It seems to me that whatever she does is now going to be second- or third-guessed, even again.

We know for sure that whatever she decides, if we assume it’s not in favor of the defendant, it’s going to be appealed.

So not much is going to happen before the election, I suspect. If that’s really going to be the case in any event, you may see very little action. They’ll make sure the case continues, because the hope, at least with respect to the current prosecution team, is that President Biden will continue, Merrick Garland will remain as attorney general, and this thing will continue to move forward.

They’ll continue to work, but it’s not like they’re going to be rushing it, because every time they make a decision, it’s likely to be appealed.

The George W. Bush administration came under criticism, as you know, for taking what some people believed were very expansive views on executive authority . Do you think that the Supreme Court’s decision on Trump’s immunity expands executive authority too much?

I think it expands executive authority to a degree. There’s no question about it.

But another way to look at it is that it’s not an expansion; it’s a recognition of the power that’s always been there. It’s just that no one has ever really tested it. And for whatever reason — it hasn’t been recognized before, there hasn’t been the right case — the court is making it clear that this is power that the president has.

It sounds to me like you regard the stakes of the election this year to be very, very high — and perhaps that this decision has raised the stakes for the election. Is that fair?

Oh, no question about it.

First of all, yes, the stakes are very, very high to begin with, but given what I think I know — and I emphasize, think I know — about the character and integrity of Joe Biden and Donald Trump, yes, I think that this decision places even greater emphasis on the character and integrity of the president of the United States.