The Great Unraveling — Ninegate and Spygate

May 18th, 2007

I’m going to fill up your inbox today — I would have earlier, but a short black-out here in the Pea Patch wiped my efforts with the kind of dispassionate “f**k you” disdain the Bushies have taken in, lo, their many “good years” of crime and pillage.

Welcome to the “bad ones.” Remember back with me to those long months … even years … when we efforted, day in, day out, to find a ray of light, a spark of hope … and projected with longing to the astrological influences of Spring and Summer ‘07.

Hey, kids! It’s HEEEEEERE!

The Bushies are coming undone. And here’s the SpyGate question de jour — WHAT WERE THEY DOING BEFORE they got their Ashcroft sign-off???? Everybody wants the answer to that one. My next post will offer some hints. Meanwhile, obstruction of justice and contempt of Congress charges are being discussed, along with impeachment of Gonzales.

Extraordinary times, great reads including one from John Dean, of Watergate fame … another word we’re hearing a lot, lately — follow the dots, today.

Jude

“Because he had an appendectomy, his brain didn’t work?”
~ Tony Snow, on the Ashcroft affair

The Gonzales Coverup
Congress must find out what the administration was doing that its own lawyers wouldn’t approve.
Washington Post Editorial
Thursday, May 17, 2007

WHY IS IT only now that the disturbing story of the Bush administration’s willingness to override the legal advice of its own Justice Department is emerging? The chief reason is that the administration, in the person of Attorney General Alberto R. Gonzales, stonewalled congressional inquiries and did its best to ensure that the shameful episode never came to light.

In February 2006, the Senate Judiciary Committee was inquiring into the warrantless wiretapping program whose existence had been revealed just two months before. Sketchy details had also begun to emerge of the March 2004 hospital room ambush, in which Mr. Gonzales, then the White House counsel, and then-White House chief of staff Andrew H. Card Jr. tried to browbeat the gravely ill Attorney General John D. Ashcroft, who had temporarily yielded his office to his deputy, into approving the warrantless surveillance program.

Sen. Arlen Specter (R-Pa.), who was then chairing the Judiciary Committee, got Mr. Gonzales to agree to have Mr. Ashcroft testify. But when Mr. Specter followed up with a letter asking as well that the department approve the appearance of former deputy attorney general James B. Comey, Mr. Gonzales balked.

If called to testify, Mr. Ashcroft and Mr. Comey wouldn’t be allowed to reveal “confidential Executive Branch information,” William E. Moschella, an assistant attorney general, wrote to Mr. Specter. “In light of their inability to discuss such confidential information . . . we do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information to the committee.”

If you were Mr. Gonzales, you’d certainly want to make sure they stayed quiet. Consider: Mr. Gonzales, as the president’s lawyer, went to the hospital room of a man so ill he had temporarily relinquished his authority. There, Mr. Gonzales tried to persuade Mr. Ashcroft to override the views of the attorney general’s own legal counsel. When the attorney general refused, Mr. Gonzales apparently took part in a plan to go forward with a program that the Justice Department had refused to certify as legal.

Then, when part of the story became public, Mr. Gonzales resorted to word-parsing. “[W]ith respect to what the president has confirmed, I believe — I do not believe that these DOJ officials that you’re identifying had concerns about this program,” he said.

Mr. Gonzales’s lack of candor is no longer surprising. What’s critical here is that lawmakers get a full picture of what happened, obtaining whatever documents — Office of Legal Counsel opinions — and testimony are necessary, behind closed doors if need be. “Jim Comey gave his side of what transpired that day,” White House press secretary Tony Snow said yesterday. If there’s another side to the story, we’d like to hear it.

What was the administration doing, and what was it willing to continue to do, that its lawyers concluded was without a legal basis? Without an answer to that fundamental question, the coverup will have succeeded. ++

Dems Seek No-Confidence Vote on Gonzales
LAURIE KELLMAN, AP
Thursday May 17, 2007

WASHINGTON (AP) - Two Senate Democrats said Thursday they will seek a no-confidence vote on Attorney General Alberto Gonzales over accusations that he carried out President Bush’s political agenda at the expense of the Justice Department’s independence.

Sens. Chuck Schumer of New York and Dianne Feinstein of California, who have led the investigation into the conduct of White House officials and Gonzales, said the attorney general has become too weakened to run the department.

“It seems the only person who has confidence in the attorney general is President Bush,” Schumer told reporters. “The president long ago should have asked the attorney general to step down.”

“I think the time has come for the Senate to express its will,” Feinstein said. “We lack confidence in the attorney general.”

Schumer said Senate Majority Leader Harry Reid supports the resolution and would try to bring it to a floor vote next week. Judiciary Committee Chairman Patrick Leahy, too, was expected to sign on.

“I have absolutely no confidence in the attorney general or his leadership,” Leahy, D-Vt, said earlier in the day.

Schumer predicted the resolution, which has yet to be finalized, would win support from at least the 60 senators required to beat a filibuster.

Five Republican senators have called outright for Gonzales’ resignation, including Sen. Norm Coleman, R-Minn., who added his voice Thursday. Several other Republicans have suggested that Gonzales consider stepping down.

One of the latter group, Sen. Arlen Specter of Pennsylvania, has left no doubt that he thinks Gonzales should leave. But he told The Associated Press that he wanted to see Schumer’s resolution before saying he would vote for it.

The announcement is the latest in a series of blows suffered by Gonzales this week, including new criticism from Republicans and the prediction of one GOP veteran that the investigation into the firings of federal prosecutors would end with the attorney general’s resignation.

Specter, the senior Republican on the Senate Judiciary Committee, said earlier Thursday that the Justice Department can’t properly protect the nation from terrorism or oversee Bush’s no-warrant eavesdropping program with Gonzales at the helm.

“I have a sense that when we finish our investigation, we may have the conclusion of the tenure of the attorney general,” Specter said during a committee hearing. “I think when our investigation is concluded, it’ll be clear even to the attorney general and the president that we’re looking at a dysfunctional department which is vital to the national welfare.”

His comment echoed new criticism of Gonzales this week. Former deputy attorney general James Comey testified that Gonzales tried to get his predecessor as attorney general, John Ashcroft, to approve Bush’s eavesdropping program as Ashcroft lay in intensive care.

Asked twice during a news conference Thursday if he personally ordered Gonzales and then-White House chief of staff Andrew Card to Ashcroft’s hospital room, Bush refused to answer.

“There’s a lot of speculation about what happened and what didn’t happen. I’m not going to talk about it,” Bush said.

The tale inspired Sen. Chuck Hagel, R-Neb., to become the fourth Republican senator to call for Gonzales’ resignation. Sen. Pat Roberts, R-Kan., joined in the criticism.

“When you have to spend more time up here on Capitol Hill instead of running the Justice Department, maybe you ought to think about it,” Roberts told The Associated Press.

Bush has stood by his longtime friend and adviser, the key to Gonzales’ hold on his job. But just when some predicted that Gonzales had survived the furors over the firings, Comey’s testimony helped broaden the Democrat-led probe into whether the attorney general politicized the Justice department at the White House’s behest.

Gonzales has said only eight U.S. attorneys were targeted for dismissal. But the Justice Department, over nearly two years, listed as many as 26 prosecutors after concerns were raised about their performances, a senior government official familiar with the process said Thursday.

The Justice Department said it fully supports all of its current U.S. attorneys. The list of 26 names was first reported Thursday by The Washington Post.

Many of the names on various and changing lists of prosecutors under scrutiny “clearly did not represent the final actions or views of the department’s leadership or the attorney general,” said Justice spokesman Dean Boyd. He said the lists “reflect Kyle Sampson’s thoughts for discussion during the consultation process.”

Sampson, Gonzales’ former chief of staff, oversaw the review that drove the firings. He resigned in March as a result of the department’s botched handling of the dismissals.

The developments came as Democrats sought more testimony from current and former Justice Department officials. House Democrats announced that Gonzales’ former White House liaison, Monica Goodling, would testify next week under a grant of immunity.

At issue is whether the department, at the White House’s urging, tried to cause problems for Democrats by facilitating voter fraud cases and others involving corruption.

Comey’s testimony this week further weakened Gonzales among Republicans as well as Democrats.

Democrats said his testimony appeared to contradict Gonzales’ account of the no-warrant eavesdropping program in February 2006, when he told two congressional panels that there had “not been any serious disagreement about the program.”

Dean Boyd, a Justice Department spokesman said Gonzales’ testimony “was and remains accurate.”

Joining Hagel in demanding Gonzales’ resignation are GOP Sens. John Sununu of New Hampshire, Tom Coburn of Oklahoma and John McCain of Arizona, who is a presidential candidate. House Republican Conference Chair Adam Putman of Florida also has called for a new attorney general. ++

Associated Press Writer Lara Jakes Jordan contributed to this report

Bush Refused to Say Who Ordered the Goulish Arm-Twisting Visit to Ashcroft’s Hospital Room
Jon Ponder, Pensito Review
May. 17, 2007

At a news conference today, Pres. George Bush refused to say who sent two of his most senior officials to then-Attorney Gen. John Ashcroft’s hospital room to twist his arm on warrantless wiretapping. Via Think Progress:

Back in those happy days in the 90s, if Clinton had refused to answer a question like this a shitstorm would’ve erupted. Ted Koppel would’ve put up a “17 days and still no answer” clock. Tweety would have had 37 blond conservative lawyers on every night to demand “accountability.”

KELLY O’DONNELL, NBC NEWS: Sir, did you send your then chief of staff and White House counsel to the bedside of John Ashcroft while he was ill to get him to approve that program, and do you believe that kind of conduct from White House officials is appropriate?

BUSH: Kelly, there’s a lot of speculation about what happened and what didn’t happen. I’m not going to talk about it. It’s a very sensitive program. I will tell you that one, the program was necessary to protect the American people and it’s still necessary, because there’s still an enemy that wants to do us harm, and therefore I have an obligation to put in place programs that honor the civil liberties of the American people — a program that was, in this case, constantly reviewed, and briefed to the United States Congress. And the program, as I say, is an essential part of protecting this country, and so there will be all kinds of talk about it. As i say, I’m not going to move the issue forward by talking about something as highly classified subject. I will tell you, however, that the program was necessary.

O’DONNELL: Was it on your order, sir?

BUSH: As I said, the program is a necessary program that was constantly reviewed and constantly briefed to the Congress. It’s an important part of protecting the United States, and it’s still an important part of our protection, because there’s still an enemy that would like to attack us, no matter how calm it may seem in America, an enemy lurks and they would like to strike. They would like to do harm to the American people, because they have an agenda. They want to impose an ideology. They want us to retreat from the world. They want to find safe haven, and these just aren’t empty words. These are the words of al Qaeda themselves, and so we will put in place programs to protect the American people that honor the civil liberties of our people and programs that we constantly brief to Congress.

Can you imagine this scenario if Bill Clinton had dodged a question this way? Atrios can:

Back in those happy days in the 90s, if Clinton had refused to answer a question like this a shitstorm would’ve erupted. Ted Koppel would’ve put up a “17 days and still no answer” clock. Tweety would have had 37 blond conservative lawyers on every night to demand “accountability.” etc… etc…

Digby:

Bush was deeply involved. He met with both Comey and Mueller on the issue after they all said they’d resign. The spinners are trying to say that their Dear Leader finally overruled others who had nefarious intentions but his refusal to answer the question today should put that to rest. There’s no reason for him to launch into such outdated 2003 gibberish about enemies lurking who “would like to strike” if he didn’t order it. It’s obvious that he did.

++

Can You Even Imagine How Bad it Must Have Been?
Marty Lederman, Balkinization
Wednesday, May 16, 2007

I want to put yesterday’s incredible Comey testimony in some context, to demonstrate just how otherworldly this story is — and what an extraordinary tale it tells about the nature of the officials who are running our government.

In March 2004, the NSA surveillance program had been operational for two-and-a-half years. According to the President and NSA, it had produced extraordinarily valuable intelligence against potential terrorist actions. (At the very least, it’s fair to assume that the folks in DOJ understood this to be the case.) The NSA and the phone companies had been going full-steam ahead on the program, even though on its face it would be a crime to do so under FISA. See 18 U.S.C. 1809. Presumably they did so only because OLC had written one or more legal opinions concluding that the President had Article II authority to disregard the statute in wartime — a legal theory not only critical to the operation of the program, but also at the very heart of the Vice President’s passionately held philosophy of Executive prerogatives.

Jack Goldsmith was confirmed to be head of OLC in October 2003. He was a loyal Republican and supporter of the President. And yet almost as soon as he took office, he began reviewing much of John Yoo’s handiwork, and found it lacking. Barely two months into his new job, for instance, Goldsmith called the Pentagon and told them that they must immediately cease relying on the critical Yoo Opinion that formed the basis for the Department of Defense’s absuive interrogation policies in Iraq and elsewhere. (I’ve reviewed this fascinating story in detail here.)

According to Comey, “there were a number of issues that [Goldsmith] was looking at” as part of his “reevaluation” of past OLC advice, and the NSA program “was among those issues” under OLC review. “Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril.” (The quotation from the best account yet of this basic story — the article in Newsweek in February 2006 by Daniel Klaidman, Stuart Taylor and Evan Thomas. That article obviously owes a great deal of debt to partial accounts published earlier by, e.g., the New York Times and this blog. Nevertheless, it is a taut, comprehensive and compelling account of what might be the most revealing aspect of the legal crisis within the Executive branch during the past six years. It is well worth reading.)

By early March 2004, OLC apparently concluded that the NSA electronic surveillance program could not be defended on the basis of OLC’s prior legal opinions, and had convinced the Attorney General and DAG that DOJ had to refuse to sign off on the program — i.e., they were compelled to inform the President that the program violated FISA and could not legally be continued in its present form. Ashcroft and Comey agreed — or at the very least, they deferred to Goldsmith’s legal judgment, which is what happens in 99% of all cases once OLC speaks.

It is extremely rare for OLC to reverse its own opinions within an Administration. And that unusual course would be especially disfavored in this case, because all the relevant DOJ officials — e.g., Ashcroft, Comey, and Goldsmith — undoubtedly understood that repudiation of this particular OLC advice would mean shutting down the very program that the President had described as the most important intelligence program in the war on terror. Moreover, the theory that OLC was repudiating appears to have been one to which the Vice President and his counsel were deeply committed, and one that appears to have formed the basis for the Administration’s decision to disobey other important statutory constraints. Obviously, then, there were profound disincentives to such repudiation.

And yet repudiate it they did. Can you imagine the reaction from the White House and the Vice President’s office when that happened? After all, as one friend remarked today, it’s not as if Nadine Strossen or Ramsey Clark was the Attorney General. This was John Ashcroft — and he would not sign off on the prior OLC legal Opinion, even though:

1. It was the sole legal basis for a critically important intelligence program that was purported to have saved many lives. Newsweek:

The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. . . . Goldsmith was not unmoved by Addington’s arguments, say his friends and colleagues. He told colleagues he openly worried that he might be putting soldiers and CIA officers in legal jeopardy. He did not want to weaken America’s defenses against another terrorist attack. But he also wanted to uphold the law.

2. Repudiation of the theory would mean that the NSA and phone companies had been committing crimes for more than two years.

3. It meant DOJ doing a remarkable about-face and acknowledging profound error.

4. It was a rejection of the principal constitutional theory at the heart of the Vice President’s program for executive aggrandizement (and was presumably the basis for several other practices and policies as well) — and so it could be expected to be met with the considerable wrath of Cheney/Addington, to the point where one of the messengers of the bad news, Associate DAG (and former OLC Deputy) Patrick Philbin, had an expected promotion blocked (according to Comey’s testimony). Newsweek: “It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself [when Goldsmith repudiated the Yoo DoD Torture memo in late 2003]. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject.”

5. The President demonstrated his profound committment to the program by personally calling the Attorney General’s wife and urging her to allow the White House Counsel and Chief of Staff to cajole the AG in intensive care, where she had not been allowing visitors.

and

6. The White House told the DOJ officials that it was going to go forward with the program anyway, even after DOJ had opined that it was unlawful.

And yet not only would Ashcroft, et al., not budge — they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

In light of all these considerations, just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It’s staggering, really — almost unimaginable that anything such as this could have happened, especially where the stakes were so high.

And recall this, as well: These are hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program. Two or three weeks later, OLC did develop an alternative legal theory that permitted a narrower version of the surveillance program to go forward. By all accounts, that legal theory is some version of the argument that the 2001 Authorization for the Use of Military Force against Al Qaeda authorized this form of electronic surveillance, notwithstanding FISA. That is a theory that I and many others have harshly criticized (see, for example, the letters collected here). It is, to say the least, an extremely creative reading of the relevant statutes — a reading that not a single member of Congress who voted for the AUMF could possibly have imagined, and one that (to my knowledge) not a single member of Congress has approved once reading of it in DOJ’s “White Paper.”

These DOJ officials were willing to sign off on that very tenuous legal theory. What does that tell us about the OLC theory that they inisted upon repudiating?

Moreover, the “revised” NSA program that OLC and DOJ approved some weeks after the March incident apparently was narrower in some fundamental respects than the program that had been authorized under the previous OLC advice. And yet, according to AG Gonzales, that new program still allowed electronic surveillance of communications as long as the NSA had a “reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” Presumably this extremely generous guideline was required by the need to bring the program under the aegis of the AUMF, which authorized the President to use “necessary and appropriate” force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

If that’s the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve? [For more along these lines, see this terrific post by Orin Kerr. Here's one speculation just suggested to me by a fellow B'zation blogger: Perhaps under the Yoo-approved program, once a U.S. person received any phone calls or e-mails from a "covered" person overseas, the NSA was authorized to intercept all of that U.S. person's future phone calls. (After all, what the Administration was most interested in would not be overseas calls, but instead calls that might reveal activity of Al Qaeda cells here in the U.S.) Under the Goldsmith-approved, AUMF-based program, however, only international calls with actual persons covered by the AUMF could be intercepted. Who knows? -- this is only speculation.]

This is the real heart of the Comey story — What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration’s legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?

It is imperative now that the Senate do all it can to obtain and investigate the entire paper trail that led up to the events described yesterday. There is no longer any excuse for the legislature to be denied the OLC opinions, at least pre-Goldsmith, that were the basis for the Executive branch’s regime of extra-legal conduct. Not only the OLC Opinions and the Executive orders on the NSA program, but also the all-important Yoo Opinion signed on March 14, 2003, the day after Jay Bybee left OLC, which was the genesis for the terrible abuse that occurred in the Department of Defense during the remainder of 2003. (More on this in the last few paragraphs of this post.)

Of course, before the OLC opinions are made public, they should be redacted so as not to reveal important but secret NSA capabilities. But those redactions shouldn’t be extensive, and should not obscure the basic legal analysis that is the critical basis for the conduct of the Executive branch in some of its most dubious activities. (OLC memos that say “no” — that tell the President that he cannot do something, such as, presumably, Goldsmith’s memo(s) in early 2004 — are a much harder call. My basic view is that those are the sorts of OLC memos that presumptively remain confidential, at least until they are only of historical interest, for two basic reasons: (i) because they did not form the basis for any Executive branch conduct that occurred; and (ii) because those are the very most important memos that OLC issues, and nothing should be done to deter Executive officials from asking OLC about the legality of questionable proposals, or to deter OLC from feeling free to candidly tell the President “no.” As my colleagues and I wrote here: “Ordinarily, OLC should honor a requestor’s desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action. For OLC routinely to release the details of all contemplated action of dubious legality might deter executive branch actors from seeking OLC advice at sufficiently early stages in policy formation.”

On the other hand, in this case the President went ahead with the conduct in the teeth of DOJ advice that it would be unlawful, and so this ordinary guideline is not quite on point. Moreover, here the Goldsmith Opinion rejecting OLC’s prior advice (assuming it exists) is likely to be critical to a full understanding of the development of the Executive’s programs and their legal justifications — and therefore perhaps it, too, should be shared with Congress.

[DISCLOSURE: I worked at OLC, including for a time with Pat Philbin, until November 2002, and I have gotten to know Jack Goldsmith since he and I both left OLC (our tenures there did not overlap). Nothing in this or any of my other posts on these sensitive matters, however, reflects any information I learned while at OLC -- I was not aware of any of the programs discussed in these blogposts while I worked there -- and neither Pat nor Jack (nor anyone else) has ever revealed any classified or otherwise confidential information to me about these programs -- in the best OLC tradition, they have to my knowledge been scrupulous about preserving all confidences. All the information herein is taken or extrapolated from public sources.] ++

Recent Developments in the Scandal over the Attorney General’s Performance
John W. Dean, FindLaw
May 18 2007

Alberto Gonzales Displays Contempt for Congress, And Perhaps the Department of Justice As Well

Lately, a week seldom passes when we are not reminded of the conspicuous contempt that Attorney General Alberto Gonzales holds for Congress, and the damage he is doing to the Department of Justice.

This week, Gonzales was again shown to have lied to Congress; his ineptitude as Attorney General has resurfaced in litigation that is going to damage the government; and after ignoring a subpoena from the Senate, he made a belated but insufficient response following an angry letter from the Senate.

It’s been clear for a while - and is becoming ever clearer - that the Attorney General ought to resign, or to be fired. Now, it seems that Congress is determined to force Gonzales from office or send him to jail, whichever they can do first.

This is plainly the right move - and anyone who does not understand why Congress is insisting on getting rid of Gonzales, does not appreciate the important and sensitive role the Department of Justice has in our government.

The Latest Developments

Here, in summary, is the behavior by Gonzales that came to light this week:

In May 2006, Gonzales gave the go-ahead to the FBI to raid a Congressional office under a search warrant. Notwithstanding many previous Justice Department criminal investigations of members of Congress, never before — in over 200 years — had there been such a tactic employed by an Attorney General.

Rather, longstanding procedures govern what occurs when the Justice Department is seeking documents from a member of Congress, and they most certainly do not include a raid. Yet Gonzales a man with no Washington experience before coming to town with George W. Bush and apparently little common sense, ignored those procedures, and the important separation-of-powers concerns that lie behind them. Despite the respect due from one branch to another, he treated a Congressman like a common criminal.

The result has been that Gonzales has tied his own Department’s investigation into knots, because he did not understand what he was doing. On May 15, the U.S. Court of Appeals for the District of Columbia heard arguments in the case of Rayburn House Office Building, Room 2133 v. United States, the ongoing appeal emanating from the raid.

Also on May 15, Attorney General Gonzales stiffed the Senate Judiciary Committee when it followed traditional procedures in asking him for documents. Previously, the Committee had asked Gonzales informally to produce documents relating to the White House’s involvement in the firing of United States Attorneys. It received no response.

Then, on May 2, the Committee issued a subpoena for the documents, requesting that Gonzales either appear on or before May 15 to explain why no documents were being produced, or submit the requested documents. Gonzales simply ignored the subpoena — providing no response at all to the committee, even an indication of why he was not complying.

The Chairman and ranking Republican then wrote a “We’ve got contempt of Congress on our minds” type letter to Gonzales, which resulted in a token production of documents which are almost as insulting as his non-response.

Finally, also on May 15, former Deputy Attorney General James Comey testified before the Senate Judiciary Committee about the extraordinary activities of President Bush, White House Chief of Staff Andrew Card, and then-White House Counsel Gonzales in their effort to thwart Comey’s rightful insistence that the Administration comply with a federal statute.
Comey - who was serving as acting attorney general - withheld approval for the White House scheme to ignore the Foreign Intelligence Surveillance Act’s prohibitions against domestic electronic surveillance. But Bush, Card, and Gonzales overturned his ruling, deciding simply to flout Congress’s law, rather than even deigning to seek its modification..
Comey’s testimony was not only damning in its own right, but it also put the lie to Gonzales’s earlier testimony on this subject. And members of the Senate Judiciary Committee have called Gonzales on the clear conflict.

Each of these instances of Gonzales’s misconduct deserves to be flushed out a bit further, in order to explain the damage this man is doing to the government. I am going to focus on the Attorney General’s remarkable ineptitude in authorizing a raid on Congress, but will comment on his other behavior as well.

The culmination of Gonzales’s incompetence, dissimulation, and hubris is shocking. The fact that Bush keeps him is testimony to Bush’s own incompetence, dissimulation and hubris which are no longer shocking, but rather standard procedure.

Gonzales’s Pattern of Condescending Behavior

Severing as White House Counsel, Washington government rookie Gonzales was politically baptized in the atmosphere of the first six years of the Bush Administration, when Republicans controlled the Congress. The job of Attorney General, then filled by John Ashcroft, must have looked easy to Gonzales — with the GOP congressional leaders running Capitol Hill as if they were all on the executive branch payroll. The Republican Congress simply did whatever the White House requested.

Gonzales watched how Vice President Cheney and his “Lets see how we can trump Congress today” counsel David Addington sent the Government Accountability Office (GAO) back up to the Hill with its tail between its legs, after it had attempted to undertake oversight of executive branch activities. Cheney refused to provide GAO with information about his task force, which was developing the nation’s energy policy in a way largely dictated by the energy industry. Congressional Republicans refused to back up GAO’s efforts to litigate the scope of its investigative powers and the Republican judges that dominate the federal judiciary backed Cheney up, all the way to the Supreme Court.

Although the Democrats have taken control of Congress, the Administration is proceeding as if nothing has changed - and Gonzales is clearly aware of that. The Administration resists providing any information requested, almost without exception. Letters from the chairs of Congressional committees are treated like junk mail and ignored. Gonzales sends low-level witnesses to testify before Congress, and they provide minimal if not misleading information. Administration witnesses are uncooperative, and have even been known to walk out of hearings when asked to remain for further questioning.

But Gonzales’s ingenuousness, his polarization of the Department of Justice, and his dissembling are all coming back to haunt him now.

Gonzales Ordered the FBI’s Historic Rayburn Building Raid

At dusk on a Saturday in May 2006, at about 7:15 p.m., and operating under the personal approval of Gonzales, not less than fifteen FBI agents wearing business suits arrived at the main entrance of the Rayburn House Office Building to exercise a court- approved search warrant. The FBI agents demanded entrance to Room 2133, the offices of Louisiana Congressman William J. Jefferson, and the Capitol Hill Police, who guard the building, let them in. Eighteen hour later, at about 1:00 p.m. on Sunday, the agents departed with an estimated 19,000 pages of documents and digital copies of computer drives.

Congressman Jefferson was, it appears, in deep trouble: He had been videotaped taking a $100,000 bribe in $100 bills from an FBI informant (of which $90,000 was later found in the freezer at his home). Yet what was done to him set a baleful precedent, and Speaker Dennis Hastert and Minority Leader Nancy Pelosi were understandably outraged. Neither Attorney General Gonzales, nor anyone else in the Department of Justice or FBI, had even deigned to inform the Speaker of these actions.

“The Justice Department was wrong to seize records from Congressman Jefferson’s office in violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years,” Mr. Hastert and Ms. Pelosi declared. It is possibly the only thing that they have ever agreed upon, and their colleagues on both sides of the House were with them.

Aggrieved by this executive branch invasion of the legislative branch’s territory, Speaker Hastert must have given President Bush an earful when they were together a few days later, for a speech in Chicago. Afterward, the President ordered that the seized documents be sealed and placed in the safe-keeping of the Solicitor General until the matter was resolved. This, however, did little to please the Congress about the tactics that had been employed by the FBI and Gonzales’s Justice Department - and it brought the investigation of Jefferson to a halt.

Was the raid actually a constitutional violation? Probably not - but it was an important violation of tradition. A reporter for the Washington Post, after talking with experts, described the raid as “an aggressive tactic that broke a long-standing political custom,” and concluded that “while it might violate the spirit of the Constitution, it might not violate the letter of the document.”

At issue is the Speech and Debate Clause. “An official legislative act is immune, but interference with anything beyond that is not covered by the constitutional provision,” Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee told the Post. The Post then added, “the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.” “It’s really a matter of etiquette,” Yale law professor (and FindLaw columnist) Akhil Reed Amar added.

Delaying the Investigation of Jefferson by Testing the Speech and Debate Clause
If Gonzales had looked at the prosecution guidelines for U.S. Attorneys, or if he had been properly briefed, he would have understood that it was all but certain that resorting to the FBI raid would impose tremendous delay in the investigation. It should have been clear from the start that the target of the investigation, Congressman Jefferson (who won reelection in November 2006 - thanks to Gonzales’s actions), was certain to contest the FBI’s actions under the Speech and Debate clause of the Constitution.

Had Gonzales simply called Speaker Hastert to explain the situation, surely some arrangement could have, and would have, been worked out. No member of Congress, after all, believes that any Congressperson, William Jefferson included, is above the law. And it was well understood that Jefferson was hardly the first member of Congress to be investigated by the FBI and Justice Department while in office. In the past, there have been many investigations into offenses similar to Jefferson’s, and many convictions. But never before Alberto Gonzales arrived in the Attorney General’s office had the Department authorized a raid on a Congressional office, particularly a raid without first seeking the cooperation of Congressional leaders in an attempt to obviate the need for such a radicial tactic.

Gonzales’s violation of tradition gave Congressman Jefferson powerful allies in his fight. A Bipartisan Legal Advisory Group, composed of the House leadership, filed an amicus brief to join Jefferson in contesting the action. Moreover, the presiding judge — Chief Judge of the U.S. District Court for the District of Columbia Thomas Hogan — recognized that the “unprecedented search of Congressman Jefferson’s office has raised questions of serious constitutional magnitude that directly implicate the fundamental workings of the federal government.” Nonetheless, Judge Hogan - correctly, I suspect — ruled on July 10, 2006 that the Speech and Debate Clause did not protect the Congressman’s papers from the FBI raid.

Because the ruling implicates separation-of-powers issues, and represents an institutional loss for Congress, when Jefferson appealed, he still had high-powered allies. That appealed was argued on May 15, before the U.S. Court of Appeals for the District of Columbia.

Joining in an amicus brief were former GOP Speaker Newt Gingrich and Democratic Speaker Tom Foley. Abner Mikva - a former Congressperson who later became a D.C. Circuit judge — also joined an amicus brief. The upshot is that, thanks to Gonzales’s gross miscalculation, William Jefferson has powerful allies helping maintain his freedom - even though his guilt seems quite plain in light of overwhelming evidence inculpating him, which he has never explained.

When the D.C. Circuit hands down its ruling, I will revisit the larger issues involved. For now, I’ll simply say that I fully anticipate that the court will support the executive branch’s actions. A petition for review by the U.S. Supreme Court will likely follow, as Gonzales has created a situation where much more is at stake than Congressman Jefferson’s freedom.

The raid should never have happened, and the case should never have come to court. Under any other Attorney General, it would not have.

Blowback from Rayburn House Office Building vs. United States

What will happen when Congress loses in Rayburn House Office Building vs. United States - which I believe they will? It’s very likely they will enact into law the informal understanding on this matter that has existed for over two hundred years. These are the kind of problems that are better left to the tradition of informal resolution, but Gonzales’s actions have precluded that option in the future.

This longstanding tradition was described by former Solicitor and Deputy General Counsel of the House form 1984 to 1995, Charles Tiefer — now a University of Baltimore law professor — when he testified before the House Judiciary Committee. Professor Tiefer explained a number of investigations undertaken by the Justice Department of members of Congress (he mentioned a half dozen members, as well as the ABSCAM sting by the FBI). However, he also noted the Gonzales raid “had all the elements of unconstitutional executive intimidation. It breached … a previously sacrosanct constitutional tradition without … a showing of unique necessity.” He said it ignored “the House’s protocols,” because, among other things, it was preceded by “no prior notice to the House leadership, nor any kind of consent of consultation.”

Members and Leaders of both parties have expressed a determination to codify these procedures, in order to protect the separation of powers, lest the executive branch treat its co-equal as less than what it is. Thus, Gonzales’s approval of this raid, in the end and ironically, has provoked a battle that the Justice Department will lose. In the future it will be much more difficult to get the institutional cooperation of Congress with such investigations. This will hurt the government because it will hamper the Justice Department and not make the Congress look good. But Congress must protect the separation of powers which Gonzales has simply ignored.

If Congress Operated Like Gonzales

Recently, Gonzales’s refused to fully comply with the subpoena for Karl Rove’s emails regarding his involvement in the firing of the U.S. Attorneys. His refusal caused me to mull what it would be like if Congress were to proceed as Gonzales has -without a shred of respect for the other branches of government.

Congress could hold Gonzales in contempt by a simple majority vote (and that would not be difficult to obtain, given the feelings in both chambers about this Attorney General). It could hold him in contempt for his failure to respond to the subpoena he virtually ignored, or for his lies to the Senate Judiciary Committee, which I will explain shortly.

Congress has two routes to travel, once it holds any person in contempt. It can proceed by the statutory route, which requires the Department of Justice to handle the prosecution. But since the Attorney General could block that route, the Congress would have good reason to use its inherent powers and procedures, instead.

Thus, Congress could –taking a page from Gonzales’s playbook — send fifteen plainclothes Capitol Hill police officers to arrest the Attorney General and take him into custody. Either the House or Senate, alone, would have the power to hold him until the end of the 110th Congress. In truth, a majority of either chamber of Congress has more power than a president, the Department of Justice, and federal courts to take summary actions against those who refuse to honor its processes.

Of course, this is not likely to happen. Congress has the power to do so if it so chooses. But because most of those in Washington with experience do not think like Gonzales, they will exhibit respect for interbranch customs instead of simply jailing the Attorney General.
Did Comey’s Testimony Show that Gonzales Lied to Congress?

As noted above, former Deputy Attorney General James Comey testified before the Senate Judiciary Committee, on May 15, that in March 2004, while Gonzales was still serving as White House Counsel, Gonzales aggressively attempted to undermine the Department of Justice’s well-grounded position on the illegality of warrantless wiretaps relating to the war on terror.

Comey testified that, at the time, Attorney General John Ashcroft had been hospitalized and was recovering from emergency surgery, and Comey was acting attorney general. Comey refused to certify the legality of Bush’s eavesdropping program, based on the advice of the Office of Legal Counsel. So Gonzales - apparently at the direction of President Bush - went to the hospital to get Ashcroft to overturn Comey’s decision. However, Ashcroft, who was still in intensive care recovering, reminded Gonzales that Comey was acting attorney general, rebuffing the effort.

In a May 16 letter from Democratic Senators Feingold, Schumer, Kennedy, and Durbin, Gonzales was asked, “In light of Mr. Comey’s testimony yesterday, do you stand by your 2006 Senate and House testimony, or do you wish to revise it?” The Democratic Senators pointed out that Comey’s testimony appeared to contradict Gonzales’s account in February 2006, when he told two congressional committees that there had “not been any serious disagreement about the program” within the Administration.

A Justice Department spokesman, responding to media inquiries, said that Gonzales’ testimony “was and remains accurate.” The spokesman also added a remarkable spin: “While the attorney general provided this testimony in an unclassified setting [referring to the testimony mentioned in the letter], it is important to consider that the fact and nature of such disagreements have been briefed to the intelligence committees.”

Apparently, the spokesman was suggesting that it was fine for Gonzales to make a false statement before Congress if he believed true statements on the same matter were being made in a classified setting. However, I cannot find any such exception in the false statements statute, which simply says: “Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully– (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; [or] (2) makes any materially false, fictitious, or fraudulent statement or representation….”

It strikes me, then, that the Justice Department has effectively admitted that the Attorney General lied. It further strikes me that Gonzales’s repeated dissembling has earned him a Special Counsel investigation. But, unfortunately, that is an appointment the Attorney General himself would have to make. And currently, there is no deputy attorney general. As an interium action, it appears that the U.S. Senate may pass a resolution of “no confidence” in the Attorney General, so members of the Senate can go on record that they do not approve of Gonzales’s behavior even if President Bush does.

It is painful to watch this implosion at the Department of Justice. If the Senate does not at minimum adopt a no confidence resolution, I wonder how much longer the career attorneys in the Department will stand for it, before they organize enough support, among themselves, to tell Gonzales that either he goes, or they go - which would simply shut down the Department of Justice. ++

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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Entry Filed under: Political Waves