Reported by Murray Waas for the Huffington Post.
Alberto Gonzales was briefed extensively about a criminal leak investigation despite the fact that he had reason to believe that several individuals under investigation in the matter were potential witnesses against him in separate Justice Department inquiries.
While Attorney General, Gonzales oversaw the probe into the disclosure of the Bush administration's warrantless surveillance program to the New York Times. However, many of those under scrutiny in that investigation were likely to be crucial witnesses about whether Gonzales himself had violated the law while promoting the program as White House counsel and testifying about it to Congress.
Justice Department Inspector General Glenn Fine is currently investigating whether Gonzales gave false or misleading testimony about the eavesdropping program while under oath.
Earlier, the Justice Department's Office of Professional Responsibility (OPR) attempted to investigate whether Gonzales and other government attorneys acted within the law in authorizing and overseeing the program. President Bush personally intervened in the spring of 2006 to shut down that investigation by preventing OPR investigators from gaining the necessary security clearances.
Senior federal law enforcement privately question the propriety of Gonzales receiving such sensitive information about subordinates being scrutinized in one inquiry when those same individuals were likely to be witnesses about alleged misconduct by Gonzales for the other investigations.
A senior law enforcement official said, "Most of the people who have been looked at [during the leak investigation] are never going to be charged. Most did nothing wrong."
Yet, during the course of the leak investigation, the official said, people were asked about their contacts with the press, whether they disagreed with aspects of the Bush administration's eavesdropping program, and even their personal politics. The official said that special care should have been taken in briefing Gonzales -- a political figure who also was the nation's chief law enforcement official -- and indeed was to some degree. But the fact that some of those investigated had information about potential wrongdoing against Gonzales was even worse.
Of serious concern, the law enforcement official said, was that the "investigative files in the [leak] case are the equivalent of raw intelligence files for someone like Gonzales."
Stephen Gillers, a professor of legal ethics at New York University, said in an interview that Gonzales's conduct was improper.
"Gonzales should have stayed out of the leak investigation once it began to focus on potential witnesses against him. By overseeing it, Gonzales put himself in a position to hurt the careers and reputations of subordinates whose cooperation was needed in the separate investigation of him. They are likely to recognize this added vulnerability -- it's hard enough as it is to provide evidence against your boss -- which will in turn intimidate them from saying anything that invites retribution from Gonzales."
Charles Wolfram, a professor emeritus of ethics at Cornell University Law School, similarly said, "As a matter of legal ethics, Gonzales had a clear conflict of interest. It seems to be flat out wrong that he should be supervising and getting information about people taking shots at him at witnesses in these other investigations."
How much of a serious concern was it to law enforcement officials that Gonzalez continued to oversee an investigation of people who have accused him of wrongdoing?
Gonzales' own legal team preemptively leaked word this month that the former Attorney General had retained George Terwilliger, a former deputy attorney general during the first Bush administration, to defend him during various investigations of his own conduct by the Justice Department and Congress.
Gonzales' attorneys were reportedly concerned that the Justice Department's Inspector General might send a criminal referral to the Justice Department's Public Integrity Section or even recommend the appointment of a special prosecutor to investigate Gonzales. (The Inspector General does not have authority to prosecute crimes himself.)
As a result of the briefings that Gonzales received during the leak probe, he now has an advantage that no private citizen under investigation could conceivably have: access to government records about his accusers even while investigations of him are ongoing.
"What happens if the Inspector General is going to come out with a report, or worse, refer to someone?" said the senior federal law enforcement official who criticizes Gonzales' briefings. "If not the first thing, then it is the second thing any good attorney is going to want to know: What do you have to discredit your accusers? What do we have to give to the press?" In this instance, the official pointed out, "You have a former attorney general being represented a federal deputy attorney general. You have people who understand how to play this game better than anyone.
"The question then is whether Alberto Gonzales is going to be able to say to his own attorney, 'I can't tell you what I learned about my own accusers. That would have been an abuse of my authority as Attorney General.'"
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Do witnesses against Gonzales feel intimidated in the way that law enforcement officials and ethics experts say might be the case?
Some former government officials who have been questioned as part of the leak probe, as well as attorneys representing officials questioned, said as much in interviews for this story. None wanted to speak for the record because they did not want to anger prosecutions investigating them or their clients.
But at least one former Justice Department official, who was questioned during the leak probe, has spoken out publicly: Jack Goldsmith, who, as head of the Justice Department's Office of Legal Counsel, questioned the legality of some aspects of the warrantless surveillance program, and directly clashed with Gonzales over the program when Gonzales was White House counsel.
Goldsmith declined to be interviewed for this story. But in his recently published memoir of his time serving in the Bush administration, "The Terror Presidency", Goldsmith disclosed that he been subpoenaed by FBI agents last April to testify under oath about the leak probe before a federal grand jury.
"What angered me most about the subpoena I received," Goldsmith wrote, was "the fact that it was Alberto Gonzales's Justice Department that had issued it... I had spent hundreds of very difficult hours at OLC, in he face of extraordinary White House resistance, trying to clean up the legal mess that then-White House counsel Gonzales, David Addington [Vice President Cheney's then-counsel], and others had created in designing the foundations of the Terrorist Surveillance Program.
"It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program."
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In response to such concerns, Dean Boyd, a spokesman for the Justice Department's National Security Division, said via email: "I'm sorry, but we will not be able to provide you any comment whatsoever on the ongoing leak investigation."
White House press secretary Dana Perino also declined comment on the propriety of Gonzales' continued involvement in the leak probe, any information he might have given President Bush about the probe, and conversations between Bush and Gonzales to shut down the OPR probe.
"The White House does not comment on private conversations that the president has with his senior advisers and his Cabinet. And that has been, and will continue to be, our standard operating procedure," Perino said. "The attorney general is one such close adviser to the president."
Perino also asserted that the discussions between Bush and Gonzales were appropriate because "the terrorist surveillance program is a highly classified national security tool to fight the global war on terror."
Terwilliger, Gonzales' attorney, did not return phone calls seeking his comment for this story.
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During much of the same time that Gonzales oversaw the leak investigation, the Justice Department's Office of Professional Responsibility was attempting to conduct an entirely separate investigation into whether Gonzales and other government attorneys acted within the law in approving and overseeing the eavesdropping program.
President Bush personally intervened in spring 2006 to shut down that particular investigation by not allowing OPR investigators to be granted the necessary security clearances. Gonzales has told Congress that Bush consulted with him on the matter, and that Gonzales actually advocated that the security clearances be granted so the OPR probe could continue -- but that Bush overrode that advice.
The OPR inquiry was shut down not long after the head of OPR, Marshall Jarrett, had informed superiors that his team was about to interview witnesses and review records that would directly contradict sworn testimony to Congress by Gonzales, according to Justice Department records and interviews. The testimony in question was Gonzales's assertion that there had been no "serious disagreement" within the Bush administration regarding the legality of the eavesdropping program.
It is unknown exactly when Gonzales learned that his own conduct would be a focus for OPR investigators, but Jarrett first complained to his superiors in a Jan. 20, 2006 memo that his investigation was being stymied because of the delay in obtaining security clearances. In the same memo, Jarrett named specific witnesses he wanted to interview and documents he wanted to review. Those witnesses and documents indicated that senior Justice Department officials had reservations about the legality of some aspects of the administration's eavesdropping program.
Two weeks after Jarrett asked for his security clearances, on Feb. 3, 2006, Gonzales appeared before the Senate Judiciary Committee and was asked whether anyone within the Bush administration had raised questions about the legality of the eavesdropping program.
Gonzales said: "There has not been any serious disagreement about the program that the President has confirmed."
Of course, it would later become famously known that there were indeed a score of top Justice Department officials who had very serious disagreements with Gonzales over the legality of the program.
Gonzales has denied having purposely mislead Congress. (His explanation of why his testimony is truthful is included in this New York Times story.)
But three senior government officials -- former Deputy Attorney General James B. Comey, FBI Director Robert Mueller, and Goldsmith -- have all since testified before Congress that they disagreed sharply about legal aspects of the eavesdropping program. Comey and Goldsmith have publicly described the intense confrontation when Alberto Gonzales and Andrew Card pressed a severely ill John Ashcroft to reauthorize the program from his hospital bed at George Washington University Medical Center. (Watch video of Comey's testimony here.)
Goldsmith, who was in the hospital room at the time, described the scene to the New York Times:
"Ashcroft, who looked like he was near death, sort of puffed up his chest. All of a sudden, energy and color came into his face, and he said that he didn't appreciate them coming to visit him under those circumstances, that he had concerns about the matter that they were asking about and that , in any event, he wasn't the attorney general at he moment; Jim Comey was. He actually gave two-minute speech, and I was sure at the end of it he was going to die."
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But none of this was known when the OPR investigation was effectively terminated -- or at least not known officially, because Jarrett could not question Comey or Goldsmith without security clearances.
On March 21, 2006, six weeks after Gonzales's notorious testimony, Jarrett took his case directly to the no. 2 official at the Justice Department, then-Deputy Attorney General Paul McNulty, according to Department records. Some time subsequently, President Bush, after consulting with Gonzales, apparently made the final decision to deny OPR security clearances to continue.
In his memo to McNulty, Jarrett pointed out that others throughout the Justice Department and elsewhere in government, often with less pressing needs. were routinely granted clearances regarding the eavesdropping program.
Jarrett noted, for example, "the Criminal Division's request for the same security clearances for a large team of attorneys and FBI agents that was investigating who initially leaked details of the NSA eavesdropping program to the New York Times."
In contrast to the nettlesome Jarrett, both Bush and Gonzales were determined to ferret out who in government leaked details of their eavesdropping to the media. No resources were to be spared. Security clearances were readily granted.
Jarrett also noted in the same memo that clearances were being granted even to Department employees handling routine Freedom of Information requests, as well as private citizens on a presidential board, while he and his staff were denied them:
"We have also learned that individuals involved in the Civil Division's response to legal challenges to the NSA program and responses to Freedom of Information Act litigation have received the same clearances. And.. five private individuals who made up the Privacy and Civil Liberties Oversight Board have been briefed on the NSA program and have en granted authorization to receive the clearances in question."
Regarding the clearances apparently granted to the president's Privacy and Civil Liberties Oversight Board, Justice Department officials told me in interviews that ordinarily private citizens on such boards are considered much greater security risks than full-time civil service government employees, such as Jarrett and his staff. Unlike government employees, they do not risk the loss of their jobs or pensions or the ends of their careers if they are caught leaking.
The board's only Democratic member, former Clinton administration counsel Lanny Davis, resigned his position in May. In his resignation letter, Davis alleged that "at least some administration officials and a majority of the board" believe that the board should be "wholly part of the White House staff and political structure, rather than an independent oversight entity." [Disclosure: Davis once briefly represented me in a minor legal matter as a private attorney.]
Was Marshall Jarrett more of a potential security risk than Freedom of Information officers and private citizens sitting on private boards? In considering that question, one should consider his resume:
Jarrett has been a career federal prosecutor and administrative officer of the Department of Justice for twenty seven years. He was a First Assistant U.S. Attorney in West Virginia. He was the head of the Criminal Division of the U.S. Attorney's Office in the District of Columbia. He also served a stint as the deputy chief of the Justice Department's elite Public Integrity Section, which oversees the prosecution of political corruption cases.
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Although Jarrett's investigation was closed down, the Inspector General's investigation is apparently just getting underway. The attorney general who once oversaw an investigation largely of officials of his own Justice Department is under investigation himself with the witnesses being those Gonzales once pursued.
And one of Jarrett's major obstacles is now moot: the White House already granted security clearances to the Inspector General's office in 2006 for other inquiries regarding the administration's eavesdropping program. Thus, it did not need new ones when it undertook its more recent inquiry as to whether Gonzales misled Congress about the program.
If the fears of Gonzales's new legal team are well-founded, the major question ultimately facing the Inspector General is whether to ask the Justice Department's Public Integrity Section to begin a formal criminal inquiry, or even to suggest the appointment of a special prosecutor.
Such an inquiry may not focus narrowly on whether Gonzales made misleading statements to Congress. It could examine the termination of the OPR investigation by President Bush, and whether Gonzales informed Bush that he was a focus of the OPR probe. It could examine whether Gonzales misused information he learned from the leak probe to squash dissent from his own subordinates or influence their potential testimony about him.
Because of the involvement of President Bush, the appointment of a special prosecutor may not be as remote as many believe.
According to one senior career federal law enforcement official, not directly involved in the probe: "That could prove to be a nightmare for this administration that they could have never imagined."
Related:
"Internal Affairs", National Journal, March 15, 2007.
"Writing Letters", New York Sun, July 19, 2006.