Recent Developments in the Scandal over the Attorney General's Performance:
Alberto Gonzales Displays Contempt for Congress, And Perhaps the Department of Justice As Well

By JOHN W. DEAN
Friday, May. 18, 2007

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.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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