Gonzo Sings! Justice In The Department At Last?

It has been clear for a long time that Gonzales had serious criminal exposure for his acts during his service in the Bush Administration, which is why immediately after departure from the DOJ AGAG lawyered up by hiring criminal-defense lawyer George Terwilliger. Probably one of the reasons Gonzales announced his resignation within a week of the initiation of an Inspector General’s investigation into his conduct.

That IG report described how Gonzales’ improperly, and illegally, possessed, handled and transported Top Secret information; i.e. the two most important, secret, and arguably illegal, programs in the history of the Bush Administration, the illegal wiretap program and–almost certainly–the torture program.

In most circumstances when the DOJ gets a fish like this on the hook, the first thing you would expect would be for them to work him for incriminating information on other malfeasance he is aware of and to entice him into a cooperations agreement to help bring others to justice. And this is just what it looks like is happening. Murray Waas is just out with a major article in The Atlantic:

According to people familiar with statements recently made by Gonzales to federal investigators, Gonzales is now saying that George Bush personally directed him to make that hospital visit.

Gonzales has also told Justice Department investigators that President Bush played a more central and active role than was previously known in devising a strategy to have Congress enable the continuation of the surveillance program when questions about its legality were raised by the Justice Department, as well as devising other ways to circumvent the Justice Department’s legal concerns about the program, according to people who have read Gonzales’s interviews with investigators.

In describing Bush as having pressed him to engage in some of the more controversial actions regarding the warrantless surveillance program, Gonzales and his legal team are apparently attempting to lessen his own legal jeopardy. The Justice Department’s inspector general (IG) is investigating whether Gonzales lied to Congress when he was questioned under oath about the surveillance program. And the Justice Department’s Office of Professional Responsibility (OPR) is separately investigating whether Gonzales and other Justice Department attorneys acted within the law in authorizing and overseeing the surveillance program. Neither the IG nor OPR can bring criminal charges, but if, during the course of their own investigations, they believe they have uncovered evidence of a possible crime, they can seek to make a criminal referral to those who can.

And what began as investigations narrowly focused on Gonzales’s conduct could easily morph into broader investigations leading into the White House, and possibly leading to the appointment of a special prosecutor.

Man, that all sounds great. But the suspects that Gonzales could hand up are current and former Bush Administration officials, all the way up to Bush, Cheney and other senior officials. Who in George Bush’s and Michael Mukasey’s DOJ is going to have the moral and ethical fortitude to do their duty in this regard? What provisions will be made to avoid the obvious conflicts of interest inherent in this situation? Who will do the right thing and uphold the rule of law? And who will insure that the situation is not allowed to be played, again, like a drum by the Bushies and their cagey attorneys so that they all skate?

Glad you asked, because that is already a prime concern. Again, from Wass and The Atlantic:

Dan Richman, a former federal prosecutor in Manhattan and professor at Columbia Law School, told me that Gonzales appears to be attempting to walk the thin line of taking himself out of harm’s way while at the same time protecting the president, a strategy that very well could work: “I think he is serving his own purposes and the White House’s purposes,” Richman says.

According to Richman, by invoking Bush’s name and authority, Gonzales and his legal team are making it more difficult for investigators to seek a criminal investigation of his actions, or for other investigators to later bring criminal charges against him: “The clearer it is that Gonzales did what he did at the behest of the president of the United States, the safer that he [Gonzales] is legally,” says Richman. At the same time, by saying that he is advising the president, Gonzales also makes it easier for those at the White House to claim executive privilege if they do indeed become embroiled in the probe.

Moreover, according to one senior Justice Department official, Gonzales, his legal team, and the White House also know that Justice’s IG and OPR are unlikely to press senior White House officials, let alone the president, to answer their questions.

And, therein you have the $64 billion conundrum. You have Alberto Gonzales working to protect both himself and the rest of the Bush brigade, and they are negotiating with Bush’s Department of Justice, led by the new AGAG and consigliere, Michael Mukasey. This is not, in terms of the best interests of the American people, the Constitution and the rule of law, exactly an arm’s length transaction. And, quite frankly, that is a glaring understatement.

So, how do the forces of truth, justice and ethics move the matter towards an honest consideration that actually might portend accountability for the malfeasance so prima facially apparent?

One scenario feared by the White House is that the IG or OPR could send a public report to Congress concluding that Gonzales or some other official may have committed a crime. At a minimum, that would make the conduct of Gonzales, or of any other official deemed to be under suspicion, the subject of a criminal investigation.

If the report also raised unanswered questions about possible misconduct by other senior administration officials, or even the president, that could lead to the appointment of a special prosecutor. Some consider this unlikely; Attorney General Mike Mukasey has said that he is not an advocate of special prosecutors, and his critics in Congress have said that Mukasey tends to use his position for the political benefit of the White House. But in the hands of congressional Democrats, a public report accusing Gonzales and other administration officials of misconduct could make it difficult for Mukasey to resist their calls for the appointment of a special prosecutor.

Inside the White House, this is what is called the “nightmare scenario.” White House Counsel Fred Fielding, who served in the Nixon White House during Watergate and as a White House counsel during the Reagan administration, has told others in the White House that although he does not consider this a likelihood, it should not be ruled out, and Bush and his staff should be ready for such a contingency.

Fred Fielding doesn’t consider accountability "a likelihood". How quaint. I wonder if the odds might improve substantially if citizens far and wide, say for instance all the readers of this and the other key blogs in the blogosphere, were to put direct and heavy pressure on their congressional Representatives and Senators to give Fred fielding and the Bushies their "nightmare scenario" they so richly deserve. And guess what? They are all going to be home in your districts begging for votes and support for an election set to go in five weeks. If there was ever a time they were hungry and amenable to influence, now is the time. Lock em down; make them promise to bring accountability!

There is one other paragraph in Murray’s article of particular note that should be related here:

A congressional source familiar with the meeting said in an interview that he believed it was significant that Bush personally directed Gonzales to write notes as to what occurred at the meeting. Ordinarily members of Congress don’t take notes at briefings concerning such highly classified issues. Very likely, Gonzales’s notes are the only ones that exist. [The Justice Department is investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program. For that story click here.]

Only time will tell whether or not Congress can be supplied with the electoral fear to induce backbone formation necessary for accountability. It is up to use to see that all the senior officials in the Bush Administration are place in the dock of a criminal trial court.

One thing is for sure, for Alberto Gonzales, the man that George Bush appallingly appointed to lead the nation’s most critical cabinet agency, the Department of Justice, it will be the first real experience he has ever had in a trial courtroom.

  1. Peterr says:

    I wonder if the odds might improve substantially if citizens far and wide, say for instance all the readers of this and the other key blogs in the blogosphere, were to put direct and heavy pressure on their congressional Representatives and Senators to give Fred fielding and the Bushies their “nightmare scenario” they so richly deserve. And guess what? They are all going to be home in your districts begging for votes and support for an election set to go in five weeks. If there was ever a time they were hungry and amenable to influence, now is the time. Lock em down; make them promise to bring accountability!

    And they are already going to be very, very nervous about irritating their constituents. All of them have been getting hammered on the bailout debacle, regardless of their position and the various options being discussed.

    Politically speaking, some kind of deal will be worked out on the Wall Street bailout. The folks on the Hill won’t like it, but they’ll hold their noses and get some kind of deal done. To make up for this, however, they will be looking for some way to stem the inevitable anger of the public, some way to be seen as strong, some way to be seen as standing up for the cause of justice and integrity . . .

    Enter AGAG.

    Senators and Representatives alike will be happy to talk about AGAG and not $700 Billion bailouts. They will be delighted to talk about accountability and the rule of law and “no one is above the law.” After bowing down to Wall Street, they’ll want to stand up to someone — anyone! — just to reclaim their dignity.

    Alberto, it couldn’t happen to a nicer guy.

    Unless of course there’s something you’d like to tell us about Addington, Libby, Cheney, Rove, Hadley, Card, Hayden, or anyone else who might have been around 1600 Pennsylvania Avenue while you were there.

    • JimWhite says:

      Oooh, good question. You must think like good ole Gaylord Perry who almost got away from the field carrying George Brett’s pine-tar bat while the argument on the field ensued.

  2. perris says:

    bmaz, I am having trouble, why is gonzo worried, can’t he just get a pre-emptive pardon from bush?

    I cannot believe bush would allow gonzo hang like this

  3. Mary says:

    I have to say that in addition to not thinking Mukasey will do anything, I’m pretty much affirmatively hoping he doesn’t.

    Think about it – if the IG or OP does come out with something specifically enough damning (and I think they’re far to far down the road to Weenieville for that to really be the case and they’ve probably kept their mandate way too narrow to be particulary useful anyway), why in the world would thinking Dems push Mukasey for appointment of a Spec Prosecutor?

    Why let him be the one to make the pick of someone who he can rely on to set the dominoes up just to Bush and Fielding’s liking?

    I rambled belowthread some, but I kinda think Rice and Gonzales are just clearing the decks for their Weinberger-esque pardons as good soldiers.

    I’m also not sure how OPR does anything, for any number of reasons but in particular because all of DOJ has bought and re-sold (kinda like a bad mortgage – heavy on the mort) the Nixonian concept that if the President, especially that All Favored War President, oks something it’s not a crime, bc the President gets to ultimately decide both what is and is not a crime and whether prosecutorial discretion should or should not result in pursuit of the crime.

    Someone could try writing a “Bleaker Still: The White House” sequel to the Dickens tome, but they’d die of depression before they got far.

    • MadDog says:

      I have to say that in addition to not thinking Mukasey will do anything, I’m pretty much affirmatively hoping he doesn’t.

      I also agree with this tack!

      My preference would be that the new incoming Democratic Administration, with a much improved Congressional Majority in both the House and Senate, take on this grave-digging task.

      Pallbearers not required!

      • bmaz says:

        Well, a dandy idea; however be advised that the statute of limitations will expire March 9, 2009. The program was well under way prior to then. With each passing day, the statute expires on substantial overt criminal acts. Even to render an indictment by March 9, 2009, you better get cranking. Since what the discussion in the post contemplated (although there may be other avenues; this is probably the most likely) requires consideration by Congress as the only vehicle for forcing a criminal referral, if you wait for the next administration and Congress, you will not even get Congressional hearings, much less a resulting criminal referral by March 9, 2009.

        The softest whitest underbelly open for prosecutorial attack on the Bush Administration on the wiretapping is the brief period where the program was operating naked on only Gonzales’ signature after the hospital scene. You severely damage the strength of the prosecutorial case if you cannot charge overtly on this time period.

        Time is a wasting. No delay to wait for the elusive “better team”, keep fighting aggressively.

  4. WilliamOckham says:

    [Apologies in advance for the length of this comment.]
    The part that I don’t get is why Fielding ratted out Gonzales to the DOJ IG. Oh wait, Fielding didn’t. Two of his underlings forced his hand.
    From the IG’s report:

    The matter was referred to the OIG by Kenneth Wainstein, former Assistant Attorney General for the National Security Division, on August 10, 2007. The White House Counsel’s Office had initially notified the Department of Justice (Department) about the matter, and Wainstein, after consultation with other senior Department officials, referred the matter to the OIG for investigation.

    Gonzales told the OIG that after Comey [May 15, 2007] testified, Gonzales informed White House Counsel Fred Fielding that he had notes memorializing his recollections of the March 10, 2004, meeting with congressional leadership that preceded the hospital visit that day. Gonzales told us he gave a copy of his notes to Fielding sometime after Comey’s testimony.

    Fielding stated that he received a copy of Gonzales’s notes, although he could not recall when. Fielding recalled that the notes were wrapped in one, and possibly two, manila envelopes. The envelope (or envelopes) contained only the copy of Gonzales’s handwritten notes, and no other documents.

    According to Steven Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, Gonzales produced the notes to Bradbury and other Department officials on July 19, 2007, as they helped prepare Gonzales for his appearance before the Senate Judiciary Committee on July 24, 2007.

    The OIG also interviewed two attorneys from the White House Counsel’s Office about the notes. The two attorneys told us that they reviewed the notes on July 24, 2007, immediately after several current and former congressional leaders publicly disputed the accuracy of Gonzales’s testimony before the Senate Judiciary Committee earlier that day regarding their reactions to the March 10, 2004, White House meeting.

    The White House Counsel’s Office attorneys, both of whom had been read in to the NSA surveillance program, told us that when they reviewed the notes they realized that the notes might contain classified information. The two attorneys said that they and White House Counsel Fielding met with Gonzales on July 25, 2007, to discuss his handling of the notes. The meeting lasted approximately 15 minutes. The two White House Counsel’s Office attorneys made contemporaneous notes of their July 25 meeting with Gonzales, and they provided these notes to the OIG.

    After the July 25 meeting with Gonzales, the White House Counsel’s Office attorneys decided to have Gonzales’s notes reviewed by the NSA for an official determination of whether the notes contained classified information. Two NSA officials reviewed the notes on July 26, 2007, and determined that 3 of 21 paragraphs in the notes contained TS/SCI information about the NSA surveillance program, 1 paragraph contained TS/SCI information about signals intelligence, and the remaining paragraphs were unclassified. The NSA officials told the OIG that the three paragraphs about the NSA surveillance program were TS/SCI based on references to operational aspects of the program, as well as the use of the codeword for the program in conjunction with these operational aspects. The NSA official responsible for classifying the notes told the OIG that one aspect of the program explicitly referred to twice in the notes was “zealously protected” by the NSA and that designating these references TS/SCI was “not a close call.”

    So, a quick recap of the timeline:

    late May 2007: Fielding gets a copy of the meeting notes.
    July 19, 2007: Bradbury, et. al. in DOJ see them.
    July 24, 2007: Two WHCO lawyers see them and have an ‘Oh S**t’ moment.
    July 25, 2007: Fielding, his two underlings and Gonzales meet. Gonzales incriminates self.
    July 26, 2007: NSA lawyers say, Duh, of course that’s TS/SCI.
    August 10, 2007: Wainstein refers matter to IG.

    Doesn’t it seem a little suspicious that Fielding, Bradbury and the rest of Gonzales’s prep team didn’t notice the problem? Do you think Fielding was happy with those two lawyers? I don’t.

    • Peterr says:

      I’m struck by the two week delay between July 26 and August 10th.

      The underlings took the notes to the NSA, the NSA said “you’re right — big problem here,” and the underlings went back to Fielding and presumably told him what the NSA had to say. Then what happened?

      Scenario one: There a two week back and forth at the WHCO over what to do with this, before the two underlings said “we’re going to the DOJ with it.” The WHCO finally brought it to Wainstein on the 10th, and he immediately gave it to OIG to deal with.

      Scenario two: the WHCO brought the matter to Wainstein on the 26th or 27th, who then took two weeks before referring the matter to OIG. During that two weeks, perhaps he tried to talk WHCO out of making a big deal of this, or talked to the AG to see what to do with it, or had conversations with others as he tried to figure out what to do.

      In other words, was it Fielding or Wainstein who sat on things?

  5. FrankProbst says:

    Constitutional law question: If someone gets a blanket pardon, can a good prosecutor still haul them in front of a grand jury, compel them to testify, and issue a “talking” indictment?

  6. skdadl says:

    When we first heard from the IG’s report about AGAG’s memorializing and how it was done, I thought it was odd, and Waas observes in the second of those articles that it seems odd, that someone should be setting down on a Saturday or Sunday notes of a crucial meeting that happened on Wednesday.

    Some things just look cock-eyed, and it bothers my brain that I can’t make sense of them.

    • Peterr says:

      Folks are constantly writing up “memos for the files” after meetings or conferences or phone calls, so that there is a record of what happened. That much is SOP, and hardly out of the ordinary.

      They are, however, generally written as soon as possible after the event in question, so that you have the freshest memory possible. And if they are not written up immediately, they carry a date as to when they were written.

      If you fudge that second date, you have set yourself up for big trouble if anyone comes looking.

      • skdadl says:

        I just listened to the Greenwald-Waas radio conversation, and they point out one further thing about the timing of the memorializing: it was done (and directed to be done?) not only 3-4 days after the meeting, but also after Bush and Gonzales both had reauthorized the program without DoJ approval (Thursday), and then also after something turned around in Bush’s mind on Friday.

        I write that down as much to remind self as anything — I’m sure everyone else has already thought versions of these things.

  7. LabDancer says:

    It’s “interesting” only in the sense that the underlying idea appears to have played a bigger part in this “administration” than of the more real ones that preceded it. Lately I’ve been trying to curb my tendency to get preachy on this sort of thing, because I doubt what most any of the regulars here need to learn any of it [particularly bmaz, and even moreso with all due respect to the learnedliness of all the lawyers here, me included, the person here with the most righteous claim to higher consciousness of all things lawyerish is Fearless Leader Ms Empty [IANAL] Wheel], but this stuff always gets me wound up.

    At some point [if required to guess, I would immediately reject that compulsion as relevant to the quality of my choice, and in addition I would refuse any and all offers of a net or other safety precaution, and without the slightest hestitation point a boney index finger at the unrelent, gluttonish, incestuous, perverted and bent monstrosity of post-WWII era Republican [brand] authoritarian crime syndication, one Richard Milhous Nixon [And in so doing I would expect to find myself in a course of some hundreds of thousands to millions of other lawyers.

    I don’t know how many times I’ve read the words “brilliant” “lawyer” and “Nixon” in the same line, but absent at least a theoretical possibility that early in his legal career, before he elected a US Congressman, working out divorces and generally more minor claims and disputes from a two-man office in downtown Whittier, there was a brief period when Nixon would have agreed with me that the right to practice law is conditioned on honest acquisition of a license and constant adherence to the Rule of Law [even the interests of the client’s lawyers are to be held subservient to the latter], and meant it, the word “lawyer” in relation to him must be read as being strictly limited to his having attended and graduated from an accredited, and more recently a not at all bad, school of law, being Duke; and his having qualified for bar membership, presumably by some form of examination, very probably far less formalized or rigorous than today, with the inherently disqualifying exceptions of such Christianist madrassas as Liberty [A division of Jerry Falwell Inc.] and Regency [A Division of Pat Robertson Inc.].

    [I wonder how far along are the plans for the John Ashworth School of Religilaw & Ecstasong – commitment to which was among a number of conditions to ensuring the former AG’s continuing goodwill and the unbearable lightness of his future ambitions as a man of letters?]

    What I am more than prepared to grant Nixon is whatever the criminal dimension’s counterpart is to “brilliant” [I’m too far from school daze to recall the German term encompassing loathesome, vile, odious and despicable; its in the multiple of standard deviations worse than Tolkein’s Golem; or anyone who was happy in his or her work in a German concentration camp; or Uday Hussein, the apple of his father Saddam’s eye and a self-styled ‘ladies man’; perhaps even the deeply psychotic Richard Cheney; I think Wagner must have had it in mind in his character Hagen, who lured, drugged and stabbed in back the hero: the recklessly brave, staggeringly naive Siegfried [the quintessential Democratic party nominee].

    But, as I can, and in this area almost invariably do, I digress.

    The particular sort of ‘brilliance’ Nixon had would have searched relentlessly for such a dandy cover-up tool as solicitor client privilege even before he attended Duke, and while there would have talked and theorized into the late late hourse of many many a happy nights thinking up uses for it, such that before he graduated, he might well have been the nation’s preeminent authority on its properties in practical application.

    And awful as theyre we know them to be, or worse, as they no doubt are, fellas like Fred Fielding, Michael Mukasey and David Addington are as grasshoppers to the master on it. Indeed, among the problems the Bush administration has not been able to overcome is to find even a single advocate with anything like the dogged relentlessness of Nixon to make their case. He wasn’t he first to recognize that Will can not just triumph over elegant, dedicated, heroic Justice, it can grind her bones to dust.

  8. Leen says:

    Are they going to throw Addington under the bus?

    “It has been widely reported that Bush executed the March 11 order with a blank space over the attorney general’s signature line. That is not correct [15]. For reasons both symbolic and practical, the vice president’s lawyer could not tolerate an empty spot where a mutinous subordinate should have signed. Addington typed a substitute signature line: “Alberto R. Gonzales.”

    What Addington wrote for Bush that day was more transcendent than that. He drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief.”

  9. freepatriot says:

    have we got enough to convict in the ICC ???

    if so, pardon away, asshole

    as our first obligation upon entering the ICC Community, President Barack Obama would be required to bring all war criminals to justice’

    any law or immunity that precludes American Prosecution would empower the other nations to arrest and try any American war criminals on sight

    so bush’s cronies got a lesson in immunity coming up

    ain’t no immunity for crimes against humanity

    have a nice life …

    • skdadl says:

      That would be an interesting question for the debates: would an Obama / McCain presidency re-sign the Rome Statute and then submit it to the Senate for ratification?

      No one will ask that, though.

      • Leen says:

        another topic that will be off limits tonight will be the Israeli Palestinian conflict. I would put money on that nothing substantive will be asked about that conflict. The I/P conflict will be the 800lb gorilla on the stage as it is in the MSM and the so called progressive blogosphere. Any one want to place a bet

        Just hoping that Lehrer mentions that 5 former Secretaries of State agree that there should be direct negotiations with Iran. I believe 4 of them believe that pre-conditions are not necessary, Kissenger being one of the 4

  10. sojourner says:

    I have learned that when Marcy Wheeler or Murray Waas are too quiet, something is coming down the pike… I think that there is just going to be all kinds of interesting news coming out over the next few weeks, don’t you?

  11. MadDog says:

    Pat Lang Gets It!:

    Vote for Obama/Biden

    The time has come when I should say that I wll vote for the Democratic Party ticket and urge others to do the same.

    Senator Obama is more to the left than I would like, but Senator McCain’s patently erratic character and bellicosity are more risk than I can vote for in the context of the present world situation. His discomfort with domestic issues adds to my conviction.

    I think Obama has the intellect and the character to be president.

    Sarah Palin? She does not know enough to be trusted with the presidency any tme soon.

    For what it is worth, I would like to see an Obama cabinet that includes Senator Hagel, probably at Defense. At the same time I think Obama would be wise to appoint Bill Clinton to be ambassador to the UN and Senator Clinton to the Supreme Court. pl

  12. Mary says:

    27 – Unfortunately, I think things will get buried with Obama as well as they would with McCain (no pallbearers, just diggers).

    Laura Rozen has a piece up at warandpiece that links to a piece she has at Mother Jones too. From those, she mentions the Obama campaign intelligence working group, led by Rand Beers:

    Among them: Former CIA deputy director John McLaughlin, former senior CIA operations officers Art Brown and Jack DeVine, retired Ltn. Gen. Claudia Kennedy, retired Ltn. Gen. and former head of the Defense Human Intelligence Service Donald Kerrick, former CIA lawyer and special advisor to the CIA director Kenneth Levitt, former CIA general counsel Jeff Smith, former CIA Near East division chief Robert Richer, and former CIA officer Valerie Plame Wilson. Former CIA lawyer and Clinton-era NSC official Mary McCarthy has stepped back from her previous role …

    So among others, you have Tenet’s sidekick and multiple CIA lawyers, including a Clinton era (aka rendition to torture starts ear) CIA lawyer and NSC offical.

    This is a crew who are going to be promoting accountability for illegal programs that directly and/or indirectly invovled the CIA? I don’t think so.

    And I can’t figure out now where I read this today, but I’m almost positive I saw was something that referenced the torture renditions and, like a lot of others, mentions Scheuer and Clinton, but unlike anything else I have seen mentioned that Congressional committees were briefed on the Clinton era renditions to torture. If that’s the case, then it really puts blood in the water for the Dems and Obama isn’t the kind of guy to dive into the bloodied water with the barracudas to rescue the carcass.

  13. Synoia says:

    “The clearer it is that Gonzales did what he did at the behest of the president of the United States, the safer that he [Gonzales] is legally,”

    Isn’t this the “I was just follwing orders, gassing the jews” defence that was invalidated at nuremburg?

  14. bluebutterfly says:

    I saw at TPM Muckraker that the long awaited report on the Attorney firings is due out of Monday.

    I wonder how Gonzo feels about that?