Resurrecting a More Important Scandal

As the scandal over the politically-motivated firing of eight U.S. Attorneys continues to grow, it's important to keep in mind that there have been a number of incidents over the years involving Alberto Gonzales that likely would have generated similar headlines and calls for resignation had Congress chosen to investigate them.

One such incident was first reported in July of last year. In response to revelations that the Justice Department had approved the use of warrantless surveillance in direct contravention of the Foreign Intelligence Surveillance Act (FISA), the DOJ's Office of Professional Responsibility (OPR) launched an investigation into the propriety and legality of that authorization. This investigation was quickly killed, however, when the President took the unprecedented step of denying to OPR officials the security clearance necessary to conduct their investigation.

As Murray Waas reported at the time:

H. Marshall Jarrett, OPR's lead counsel, wrote Deputy Attorney General Paul McNulty, on April 21, 2006, to point out that while OPR was denied security clearances to conduct its inquiry, requests from prosecutors and FBI agents tasked with investigating who first leaked details of the NSA surveillance program to the New York Times were "promptly granted."

"We note...," Jarrett wrote, "that the Criminal Division's request for the same security clearances from a large team of attorneys and FBI agents were promptly granted, and that their investigation of certain news leaks about the NSA program is moving forward."

Jarrett also noted that while he and his attorneys were denied the clearances, five "private individuals" who serve on the president's "Privacy and Civil Liberties Oversight Board have been briefed on the NSA program and have been granted authorization to receive the clearances in question." Private citizens -- especially those who serve only part-time on governmental panels -- have traditionally been considered higher security risks than full-time government employees, who can lose their jobs or even be prosecuted for leaking to the press.

Michael Shaheen, who headed the OPR from its inception until 1997, said in a telephone interview in May that his staff "never, ever was denied a clearance" and that OPR had conducted numerous investigations involving the activities of attorneys general. "No attorney general has ever said no to me," Shaheen said.

By all reasonable measures, this should have been a huge story. The president had personally quashed an investigation into the conduct of his Justice Department by resorting to a method that was both unprecedented and clearly selectively-deployed. The Republican-controlled Congress, however, had zero interest in pursuing the matter. Without the means to carry the narrative forward, the story was quickly forgotten.

Fortunately, Murray Waas is a persistent man. He kept digging, and this week he chose the perfect time to remind everyone about this incident. In an article published on Tuesday, he reported:

Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.

Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work. . . .

Sources familiar with the halted inquiry said that if the probe had been allowed to continue, it would have examined Gonzales's role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general. . . .

Current and former Justice Department officials, as well as experts in legal ethics, question the propriety of Gonzales's continuing to advise Bush about the investigation after learning that it might examine his own actions. The attorney general, they say, was remiss if he did not disclose that information to the president. But if Gonzales did inform Bush about the possibility and the president responded by stymieing the probe, that would raise even more-serious questions as to whether Bush acted to protect Gonzales, they said.

President Bush's shutting down of the Justice Department probe was disclosed in July. However, it has not been previously reported that investigators were about to question at least two crucial witnesses and examine documents that might have shed light on Gonzales's role in authorizing and overseeing the eavesdropping program.

Waas's follow up article has not gone unnoticed. Democrats in both the House and Senate, citing the article, have drafted letters to Gonzales demanding to know more about this incident. Subpoenas and hearings may soon follow.

As I wrote back in July, it's not hard to guess why the White House and Alberto Gonzales wanted to quash this investigation:

I suspect than an OPR investigation would have uncovered the fact that many attorneys within the DOJ had counseled the White House that the legal arguments they were relying on were dubious at best and highly unlikely to survive judicial scrutiny (as evidenced by Hamdan). I'm sure that many of the lawyers at the DOJ agree in principle with the Addington/Yoo theory of executive power, but there's an enormous difference between finding an argument persuasive and believing that it is likely to carry the day in court. . . .

. . . even before Hamdan, there was little doubt that under current Supreme Court precedent, neither the AUMF nor article II would likely be found to authorize the circumvention of FISA's clear prohibition against warrantless wiretapping. Whatever else the lawyers at the Justice Department told the President, they must have told him how unlikely these arguments were to prevail in court should the program ever be challenged. And that warning severely undermines the President's ultimate defense, i.e., that he was acting upon a good faith belief in the legality of his actions. This is why the OPR investigation had to be halted. Not because it threatened national security, but because it threatened the President, both politically and legally.

The airing of this internal advice would also be quite damning to Alberto Gonzales who, in both his capacity as White House counsel and later as Attorney General, no doubt would have opined as to the legality of the NSA Program and signed off it. As Glenn Greenwald put it today (and his entire post is well-worth reading):

Alberto Gonzales' plainly improper role in blocking an investigation which would have encompassed his own behavior should be added to the growing list of evidence showing just how corrupt he is. Despite all of that, it is imperative to keep in mind that there is nothing special about Alberto Gonzales. What he is, first and foremost, is a Bush loyalist, and his behavior is always a reflection, an outgrowth, of how the President thinks and how this administration has conducted itself for years.

And therein lies the problem. Under Gonzales, the Office of the Attorney General has operated as if it were an extension of the White House counsel's office. Gonzales has always been far more concerned with the interests of his boss and lifelong benefactor, George Bush, than with the interests of justice or the American people. He has to go.