Follow the Perjury

The other day Marty Lederman lamented:

Unfortunately, most of the reaction to the Times story is about the question of whether it helps or hurts the allegations that the Attorney General lied to Congress. Folks, really, that's a sideshow. . . .

. . . in my view, whether the deceptions and prevarications and dissembling add up to perjury or not is really neither here nor there. It wasn't about perjury with Clinton, and it's not now. There was a serious cover-up here, but it largely occurred before the Times broke the NSA story in 2005. Since that time, the scandal is not that any particular Administration witness wrongly reassured any member of Congress about anything -- it's not as if anyone listened to Gonzales's testimony and then said, "well, then, ok, never mind about that NSA thing" -- but instead that the Administration (and those in Congress aware of the details of the NSA program) have continued to hide the details of the program, and the legal justifications during the lifespan of the program, from Congress as a whole and (with the exception of some technical details that should remain classified) from the public, as well. The focus now, in other words, should be on the substance of the NSA and FBI conduct, on DOJ's justifications therefore, and on the breakdown in the separation of powers -- and not the parsing of the Attorney General's testimony, which has never been useful for anyone in Congress anyway.

Glenn Greenwald seconded this sentiment:

The NSA scandal is not now and never has been about perjury. It is about highly illegal spying activities by our government on American citizens.

The scandal arose because the Bush administration spied on Americans illegally for many years and concealed its criminality. It did so (a) by eavesdropping on the telephone calls of Americans without warrants even though FISA makes it a felony to do that, and (b) by engaging in the even-worse though still unknown spying activities which caused Ashcroft, Comey, Mueller et al. to threaten to quit if it did not cease.

This is where the focus should be, and my concern from the start about the Gonzales perjury focus is that it would overshadow that far more important issue. We cannot spend the next 18 months in a mind-numbing semantic debate over what the "TSP" means or does not mean in the administration's misleading testimony and public statements. That is far afield from the real criminality here and it will obscure it.

I agree with Glenn and Marty about most things, but I disagree about this. As Brian Beutler points out:

This is fairly odd reasoning for a few reasons, I think. There are a number of good reasons to go after Gonzales for perjury, not least of which is that that's perhaps the only ways we'll ever learn exactly what the NSA and DOJ were up to.

That seems right to me. The focus on Gonzales' perjury has already paid dividends by forcing the Bush Administration to leak additional important facts about the NSA program to various news outlets in an effort to defend Gonzales. This is how scandals unravel. You find a thread and you pull it. That's what happened in Watergate.

Nothing happens unless you create leverage and use it to pry the truth out. Gonzales' lies may pale in significance to the underlying conduct at issue here, but they are also something concrete, something that can be seized upon to put pressure on the White House. We're never going to get to the underlying truth unless we have some means of forcing the issue.

This is also why I favor pursuing impeachment against Gonzales. Others have suggested that Democrats seek the appointment of a special prosecutor. I disagree. Special prosecutors operate under strict secrecy rules, work very slowly, and limit their focus to blatant criminal misconduct. They are also significantly hampered by classification issues, particularly at the prosecution stage.

Because impeachment proceedings are just about removing officials from office, not imprisoning them, they are not limited by the same strict standards. It is a faster, more public process. And I doubt it would even need to proceed to a Senate trial. If a bill of impeachment passed the House, Gonzales would almost surely resign. The White House would demand it, not wanting a Senate trial to dominate headlines for weeks.

The removal of Gonzales would have all sorts of collateral benefits as well. It would improve morale at the DOJ overnight and allow the rebuilding process to begin. And whomever Bush appoints as his successor would have to be capable of winning Senate confirmation. Anyone capable of doing that would, by definition, be a vast improvement over Gonzales. And the Senate could use the confirmation hearings to explore various key issues and to extract a number of important promises from the new Attorney General regarding the NSA program, hiring practices at the DOJ, the executive privilege fight, etc.

Long story short, I think it's important to try to make the case that Gonzales' lied to Congress and then use that case as leverage to expose the truth, and hopefullly, expel Gonzales from office.

On an tangential note, I have a new post up over at Crooks & Liars about Bush's recent statements about FISA.