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Congress Scrutinizes Attorney General Gonzales’ Role

March 20, 2007 at 3:05 PM EDT
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KWAME HOLMAN: President Bush began his day with an early morning phone call of support to Alberto Gonzales, just as White House spokesperson Dana Perino was denying news reports that the search was on for a new attorney general.

But as the day progressed, so did the firestorm on Capitol Hill surrounding the Justice Department’s abrupt dismissal of eight U.S. attorneys late last year. Democrats said 3,000 new e-mails and documents released by Justice late last night confirmed that the firings were politically motivated.

Senate Judiciary Committee Chairman Patrick Leahy.

SEN. PATRICK LEAHY (D), Vermont: It was an abuse of power committed in secret to steer certain outcomes in our justice system and then to try to cover up the tracks.

KWAME HOLMAN: Republican John Cornyn, however, downplayed the significance of the dismissals, once again noting that President Clinton fired all 93 U.S. attorneys when he took office.

SEN. JOHN CORNYN (R), Texas: I don’t see what the hubbub is about relieving eight U.S. attorneys of their job; that’s within the right of every president.

KWAME HOLMAN: But the latest documents shed new light on the build-up to the firings and the administration’s attempts to control the damage once they occurred.

On December 5th, two days before seven of the attorneys were fired, Deputy Attorney General Paul McNulty wrote in an e-mail that he had second thoughts about dismissing Daniel Bogden of Nevada. “I’m still a little skittish about Bogden,” he said. “I’ll admit I have not looked at his district’s performance.”

That would seem to contradict earlier testimony from Justice officials that the firings were performance-related. In fact, the e-mails show that McNulty caused a stir within Justice in February, after he told a Senate committee that one U.S. attorney, Bud Cummins of Little Rock, was moved aside to make room for a protege of White House political adviser Karl Rove.

Attorney General Gonzales apparently was “extremely upset,” according to a Justice spokesman, and thought some of the statements that McNulty had made were inaccurate.

And earlier this month, as congressional Democrats prepared to subpoena the fired prosecutors to testify, internal Justice Department e-mails show that Gonzales’ former chief of staff, Kyle Sampson, said Bud Cummins should not testify because he “would tell the truth about his circumstances” of being fired so that Rove’s aide could take over in Little Rock.

Unhappy with the shifting stories, Democrats are prepared to subpoena Sampson to testify and had hoped to get Rove and former White House counsel Harriet Miers to testify, as well.

SEN. DIANNE FEINSTEIN (D), California: The time for slippery explanations is over.

KWAME HOLMAN: But this afternoon, following a private meeting with White House counsel Fred Fielding, Democrats Chuck Schumer and House Judiciary Committee Chairman John Conyers said the White House offered only private interviews with the two, not under oath and not to be transcribed.

REP. JOHN CONYERS (D), Michigan: We are disappointed, and I think that may be an understatement.

KWAME HOLMAN: During his statement at the White House this evening, President Bush said that was the best deal he was going to offer.

GEORGE W. BUSH, President of the United States: We will not go along with a partisan fishing expedition aimed at honorable public servants. The initial response by Democrats, unfortunately, show some appear more interested in scoring political points than in learning the facts.

It will be regrettable if they choose to head down the partisan road of issuing subpoenas and demanding show trials when I have agreed to make key White House officials and documents available. I have proposed a reasonable way to avoid an impasse; I hope they don’t choose confrontation.

KWAME HOLMAN: Late today, Senate Judiciary Chairman Patrick Leahy rejected the White House offer.

Building towards a confrontation?

Walter Dellinger
Former Clinton Administration Official
Well, this will be clearly unacceptable to Congress, because the precedent is so strong from the Clinton presidency. What the president has offered is an informal interview, unsworn, with no transcript and not sworn testimony in public.

JUDY WOODRUFF: For more on these developments and a look at the role of the attorney general, we are joined by Stuart Taylor, a legal affairs columnist with National Journal and a fellow at the Brookings Institution.

Michael Carvin, he was deputy assistant attorney general in the Office of Legal Counsel during the Reagan administration, he's now in private practice.

And Walter Dellinger, former acting solicitor general under President Clinton, and now a law professor at Duke University.

Walter Dellinger, to you first. The president said he hopes there isn't a confrontation, but it does appear that there's going to be one. He says you can interview White House staff and others, but we're not going to let you talk to them by subpoena.

Who's on stronger ground here? The Congress is saying that's not enough.

WALTER DELLINGER, Former Acting Solicitor General: Well, this will be clearly unacceptable to Congress, because the precedent is so strong from the Clinton presidency. What the president has offered is an informal interview, unsworn, with no transcript and not sworn testimony in public.

In the Clinton administration, four different White House counsels testified in public and under oath. Eight deputy or associate White House counsels testified in public and under oath. Ten officials -- ten times -- officials in the position of Mr. Rove testified in public and under oath.

A total of 47 times, Clinton senior White House officials testified in public, under oath, with a transcript, so it will be very hard for Congress to accept any less in these circumstances where we don't know what the facts are, but we...

JUDY WOODRUFF: I was going to say, Michael Carvin, you come out of the Reagan administration. Looking at this, do you agree with Walter Dellinger that the president's in the other direction?

MICHAEL CARVIN, Former Deputy Assistant Attorney General: Oh, yes, obviously the president is in the other direction. There's a very strong claim of executive privilege. This is advice within the White House itself, and that's typically where you draw the line.

Plus, unlike the Clinton examples that Walter used, there's no evidence of criminal wrongdoing here. I haven't even heard an allegation of criminal wrongdoing. There's allegations of abuse of the personnel system.

But, no, the Supreme Court has made it clear: You need a very clear showing of a reasonable suspicion of criminal wrongdoing to overcome the president's inherent power to get unfettered advice from his advisers.

I'm not saying that, as these things play out, there won't be the normal, you know, ritual between Congress and the president, where some agreement will be worked out. I suspect that's typically how it works and will work here. But that's got a lot less to do with law than it does with power.

JUDY WOODRUFF: Stuart Taylor, which side do you see on stronger ground?

STUART TAYLOR, National Journal: I think they both have strong points, but I think the way these things actually end is it depends on the president's political strength, vis-a-vis Congress, as to where the deal gets cut.

And this president is looking pretty weak these days, particularly with an attorney general who is not widely respected, who he's trying to save from being fired, basically.

Is he really going to be able to save his attorney general and prevent Karl Rove from having to testify at Congress in the face of all the Clinton precedents that Walter cited at the same time? I think he faces an uphill battle in the real world.

Now, in fairness to Mike, every time White House officials testify before Congress in open session, it degrades somewhat from the power of the presidency in a way that could come back to haunt us five or 10 years from now. But that's hard ball in Washington.

WALTER DELLINGER: Judy, I want to give Mike this point. Advice given to the president -- there is an interest in having a president get unfettered advice from those who speak directly to him and to have what they say to him and what he says back to them shielded, except in fairly strong circumstances.

But that's not necessarily what is being talked about here. The testimony of the White House officials are about conversations that occur between White House officials and Justice Department officials, not necessarily advice given to the president.

And there, the question is not whether they can relay what those conversations were, but whether they'll do so under oath and in public.

Attorney General Gonzales' standing

Michael Carvin
Former Reagan Administration Official
The notion that firing eight U.S. attorneys with White House personnel involved is somehow shocking is like saying you're shocked to discover there's gambling in Casablanca. I don't know where these people have been.

JUDY WOODRUFF: Moving to the attorney general, Michael Carvin, based on what is known about the circumstances around the firing of these eight U.S. attorneys, should this attorney general be in trouble right now?

MICHAEL CARVIN: I really think this is much ado about very little. I'm not saying that they haven't mishandled this from a public relations perspective. They clearly have.

But the notion that firing eight U.S. attorneys with White House personnel involved is somehow shocking is like saying you're shocked to discover there's gambling in Casablanca. I don't know where these people have been.

There's not one member of that Judiciary Committee who hasn't called the White House or the Justice Department and said, "My cousin or my law school roommate wants to be a U.S. attorney."

So the notion that these kinds of appointments and removals in Walter's administration -- they fired all 93 in one slot -- the notion that is isn't influenced by the fact that the president needs his team in place, both at the main Justice Department and in the field, is really quite silly and quite counterfactual.

JUDY WOODRUFF: Stuart Taylor, I mean, where is the line drawn, the attorney general doing his job and the allegation that an attorney general has stepped over the line...

STUART TAYLOR: I think there are pretty clear lines. The trouble is figuring out where the facts lie on them.

You fire the U.S. attorney because you want him to do more death penalty cases, that's fine. You fire him because you want a Republican, that's fine. You fire him because you want to put a patronage appointee in the job, that's fine.

You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine.

And the problem that they've created for themselves here is they've given so many contradictory explanations and implausible explanations for why they did this, as to sow a great deal of suspicion that maybe they did it for illegitimate reasons.

And in a couple of these cases, the fired U.S. attorneys themselves have suggested that the reasons may have been illegitimate, may have been -- you know, they fired this one because she was investigating Republicans. They fired that one because he wasn't getting tough on Democrats, that sort of thing.

The role of an attorney general

JUDY WOODRUFF: Walter Dellinger, I think a lot of people look at this and they say, not only is it confusing, because there's so many strands to the story, but people are asking: What is the role of the attorney general?

This is supposed to be someone who knows the president, who has the confidence of the president, but doesn't necessarily jump when the president or the White House says, "Jump."

WALTER DELLINGER: Well, there is a different role for the attorney general than for the White House counsel. The White House counsel is an advocate for the president. The attorney general needs to maintain some independence from the political agenda of an administration and make sure that decisions are made according to proper law enforcement standards.

Now, in this case, there's one and only one, in my view, serious charge. And we don't know what the facts are, but one thing we've never done in this country, as Stuart Taylor suggests, is to either undertake or abandon a criminal investigation for partisan political reasons.

We don't know that that happened here; if it did, it's a very serious charge. We hope it didn't happen. But that's the charge that is serious.

And it doesn't matter whether it came from the White House or the attorney general, but the attorney general is in an interesting position, because the president does get to set law enforcement policies for the United States. The attorney general should make sure that those are proper considerations to go into the determination of who you prosecute and who you don't prosecute.

JUDY WOODRUFF: Michael Carvin, just on this point about Walter Dellinger saying that the one thing that matters here is whether an investigation, someone actively involved in an investigation was sidelined because of that investigation. Would you agree that's what this boils down to?

MICHAEL CARVIN: If it happened...

JUDY WOODRUFF: If it happened.

MICHAEL CARVIN: ... I totally agree with Walter that it would be improper. But I haven't -- look, statistically you couldn't throw a dart at all the U.S. attorneys in the United States and fire eight of them and not have some of them or one of them involved in what somebody would consider a politically sensitive investigation.

So if you're just going to jump to the conclusion that because there was an investigation, that was the reason for the firing, I think that's extraordinarily unfair, plus which, at least as far as I know, there hasn't been any documentary evidence.

And they did release all the e-mails from the White House to the Justice Department establishing this linkage. So, right now, it seems like a fishing expedition, where they're trying to find wrongdoing rather than pursuing something that they know is wrongdoing or strongly suspect it is.

Alberto Gonzales' tenure

Stuart Taylor
National Journal
You don't want a lap dog for the president. I think what we have now, frankly, is a lap dog for the president.

JUDY WOODRUFF: You've looked, Stuart Taylor, at a number of attorneys general, how they've done their jobs. How does the way Alberto Gonzales has conducted himself compare to others?

STUART TAYLOR: I think the best formula for an attorney general is someone who has the president's certainly respect -- which often requires friendship, as well -- but is also independent, who knows how to say no to the president, and is a person of independent stature, a president whose stature is not derivative from his relationship with the president.

You don't want a lap dog for the president. I think what we have now, frankly, is a lap dog for the president.

Mr. Gonzalez is a nice man. He was a competent lawyer. He's never had any stature in American government...

JUDY WOODRUFF: What do you base that on, the statement?

STUART TAYLOR: If you look at his history, he was plucked out of a law firm in Texas. He came to Washington in the middle -- at the beginning of the war on terror. He had no background in national security law.

And he's made a series of terrible blunders, as both White House counsel and as an attorney general that, in my opinion, have weakened the presidency by overreaching on claims of presidential power, so they've lost a bunch of Supreme Court cases, for example.

JUDY WOODRUFF: Michael Carvin, how do you size up this attorney general?

MICHAEL CARVIN: Oh, I think he's implemented the Bush policy in the way that he has. Obviously, there's been a lot of controversial national security decisions.

But, you know, there's no attorney general -- if you look at the past 40 years, name one attorney general that hasn't been caught in a partisan crossfire at least relatively analogous to this, Janet Reno, Ed Meese. Go down the list.

It's a tough job. You're making tough calls all the time. To single out Gonzales as somehow uniquely unqualified I just don't think is fair. He was better qualified than a whole lot of attorneys general when he came into the job.

JUDY WOODRUFF: So this is par for the course, Walter Dellinger?

WALTER DELLINGER: Yes, and I would emphasize that nobody should jump to conclusions. I agree with Michael about that. We don't know what the facts are; we don't know that any impermissible considerations were taken into account.

But what I think leads to the impetus for an investigation is the fact that the explanations of why they were fired are so confusing and sometimes inconsistent; that is what has created the circumstance in which people want further investigation.

JUDY WOODRUFF: Well, you do have the language in the e-mails, the Kyle Sampson, the attorney general's former chief of staff, talking about who was a local "Bushie," quote, unquote, and who wasn't. I mean, is that enough to make a big deal out of this?

MICHAEL CARVIN: If any senator wants to tell me that this is the first time a president has hired people loyal to him in U.S. attorneys' jobs, I will recede in all my objections to this investigation. But they know that's not true.

There are lines, as Stuart pointed out. Sometimes the lines get a little blurry. But the notion that political affiliation and prior involvement in a president's life is not a factor is just ahistorical.

JUDY WOODRUFF: So just to be clear, Stuart Taylor, what would qualify as stepping over the line for an attorney general?

STUART TAYLOR: For example, Carol Lam, the San Diego U.S. attorney, was fired who had prosecuted a Republican congressman and was investigating another. The former, now-fired chief of staff for Attorney General Gonzales, Kyle Sampson, has an e-mail, I think, where he says, "There's a real problem we have right now with Carol Lam."

Well, probably Congress wants to know, what was that problem? And was it that she's prosecuting our guys?

Now, I suspect that there will be an explanation, that there was a different kind of a problem, and that, in the end, nobody is going to be proven to have acted in a corrupt fashion here. But it's natural for people to want to investigate it.

JUDY WOODRUFF: All right, gentlemen, much to talk about. We thank you all three for being with us, Michael Carvin, Walter Dellinger, Stuart Taylor. Thank you very much.

STUART TAYLOR: Thank you.

JUDY WOODRUFF: Appreciate it.