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Democrats Seek Perjury Probe for Attorney General

July 27, 2007 at 6:10 PM EDT

RAY SUAREZ: The allegations of perjury leveled by Senate Democrats this week against Attorney General Alberto Gonzales revolve around the varied recollections concerning a deeply controversial and once top secret surveillance program.

In sworn congressional testimony on multiple occasions, the attorney general said there was no internal dissent among administration officials about the program and the surveillance was not at the center of a tense meeting in March 2004. Starkly different accounts have emerged of the same events and discussions.

In testimony before the Senate Judiciary Committee in May, former Deputy Attorney General James Comey told of an impromptu meeting at the hospital bedside of former Attorney General John Ashcroft. Gonzales and former White House Chief of Staff Andy Card were seeking reauthorization of an intelligence program.

JAMES COMEY, Former Deputy Attorney General: In walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly, and then Mr. Gonzales began to discuss why they were there, to seek his approval for a matter.

I was very upset. I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general because they had been transferred to me.

RAY SUAREZ: Comey said, contrary to Gonzales’ assertion, there was significant dissent among top law enforcement officers over a program Comey would not specifically identify. He said top Justice Department officials were prepared to resign over it.

This past Tuesday, Gonzales told skeptical senators the domestic surveillance program, which President Bush had acknowledged to the public, was not the topic of the hospital discussion in 2004. The White House would label it the Terrorist Surveillance Program, or TSP.

ALBERTO GONZALES, U.S. Attorney General: Mr. Comey’s testimony about the hospital visit was about other intelligence activities — disagreement over other intelligence activities. That’s how we’d clarify it.

SEN. CHUCK SCHUMER (D), New York: That is not what Mr. Comey says; that is not what the people in the room say.

ALBERTO GONZALES: That’s how we clarify it.

RAY SUAREZ: Yesterday, four Senate Democrats requested a special prosecutor investigate the attorney general for possible perjury.

SEN. RUSS FEINGOLD (D), Wisconsin: In his testimony before the Senate Judiciary Committee, the attorney general misled Congress when he said there was not any serious internal disagreement about the NSA warrantless wiretapping program.

RAY SUAREZ: Hours later, the FBI director, Robert Mueller, was asked about the hospital meeting at a House oversight hearing, and his testimony seemed to contradict the attorney general’s.

REP. MEL WATT (D), North Carolina: Can you confirm that you had some serious reservations about the warrantless wiretapping program that kind of led up to this?


REP. SHEILA JACKSON LEE (D), Texas: Did you have an opportunity to talk to General Ashcroft, or did he discuss what was discussed in the meeting with Attorney General Gonzales and the chief of staff?

ROBERT MUELLER: I did have a brief discussion with Attorney General Ashcroft.

REP. SHEILA JACKSON LEE: Pardon — I’m sorry?

ROBERT MUELLER: I did have a brief discussion with Attorney General Ashcroft after I arrived.

REP. SHEILA JACKSON LEE: And did he indicate the details of the conversation?

ROBERT MUELLER: I prefer not to get into conversations that I had with the attorney general. At the time — again, he was entitled to expect that our conversations…

REP. SHEILA JACKSON LEE: And I respect that. Could I just say, did you have an understanding that the discussion was on TSP?

ROBERT MUELLER: I had an understanding the discussion was on an NSA program, yes.

REP. SHEILA JACKSON LEE: I guess we use TSP, we use warrantless wiretapping. So would I be comfortable in saying that those were the items that were part of the discussion?

ROBERT MUELLER: It was — the discussion was on a national — an NSA program that has been much discussed, yes.

RAY SUAREZ: But Justice Department and White House spokesmen have disputed the contention that Mueller’s testimony invalidated the attorney general’s.

JOURNALIST: Can you assure us that both Mueller and Gonzales were telling the truth?

TONY SNOW, White House Press Secretary: Yes, I think so. Yes. I mean, I just…

JOURNALIST: You think so?

TONY SNOW: Yes. Look, I cannot serve as the fact witness of everything that was in their head and try to unpack exactly what they meant, but I’m sure that both men were up there telling the truth and the whole truth as they understood it.

Two views on the accusations

Lee Casey
Former Justice Department Official
I think if you look at the entire record... you will see that the attorney general has, in fact, been very consistent about how he talks about these highly classified programs.

RAY SUAREZ: Now, for two differing views on the perjury accusations against the attorney general, we're joined by Lee Casey, a former Justice Department lawyer during the Reagan and first Bush administrations. He's now in private practice in Washington.

And Peter Shane, a former Justice Department lawyer during the Carter and Reagan administrations, he's now a professor of law at Ohio State University, specializing in separation of powers issues.

And, Professor Shane, has the attorney general's testimony been called into enough question, in your view, to warrant this request for a perjury investigation?

PETER SHANE, Ohio State University: I think the answer is yes, both because of the confusion that he has created with regard to the actual state of Justice Department thinking on the terrorist surveillance program, but also because it follows upon a series of confusions with regard to his testimony and its relationship to other people's testimony on the U.S. attorney matters.

I think that, if there is going to be a special counsel or if there's going to be any kind of proceedings within Congress focusing on perjury, they won't be limited just to the testimony this week, but will look really at the totality of the attorney general's testimony with regard to these controversies.

RAY SUAREZ: Lee Casey, have discrepancies turned up in the past few weeks from various witnesses that warrant an investigation into the attorney general?

LEE CASEY, Former U.S. Staff Attorney: No, I don't think so. I think if you look at the entire record, at the various testimony, opportunities for testimony that have taken place and last Tuesday's, you will see that the attorney general has, in fact, been very consistent about how he talks about these highly classified programs.

The program about which he said there was no dispute is a program that was created after the original program died, when Mr. Comey refused to reauthorize it, in March of 2004. Mr. Comey then essentially redid the program to suit his legal concerns. And about that program, there was no dispute.

There was clearly a dispute about the earlier form or version of the program. The attorney general has not talked about that program. He refers to it as "other intelligence activities" because it is, in fact, still classified.

Clarifying Gonzales' testimony

Peter Shane
The Ohio State University
I think, given this track record, it is hard to say that there is no serious basis for an investigation whether he was speaking truthfully.

RAY SUAREZ: So you're saying that Director Muller's testimony, for instance, in fact, he's talking about a different program from the one the attorney general was referring to?

LEE CASEY: I think he's talking about legally a different program. I think they both involve NSA surveillance of al-Qaida calls into and out of the United States. I think they differed in some significant respects, but in some sense, we're speculating about that, because we don't really know what the full bounds of the first program was.

RAY SUAREZ: Professor Shane, a misunderstanding?

PETER SHANE: Well, I think it's impossible to tell that without further investigation. And, again, this has to be seen in the background of a larger context, a context that involves Congress's struggle to find out more about the Terrorist Surveillance Program, but a context that also involves, as I said before, uncertainties about the attorney general's forthrightness in other testimony.

When he testified with regard to the disputed dismissals of U.S. attorneys, there were inconsistencies either within his testimony or between his testimony and the testimony of other witnesses with regard to his role, with regard to communications he had with Senator Domenici, with regard to whether he had seen witnesses prior to their testimony at the same hearing, with regard to whether he had seen memoranda on this, and the roles of other Justice Department lawyers in making this decision.

I think, given this track record, it is hard to say that there is no serious basis for an investigation whether he was speaking truthfully. Mr. Casey's, I think, position reflects what I think we both would agree is the difficulty of proving perjury beyond a reasonable doubt to a jury in a court of law.

However, that's not what it takes to start a grand jury proceeding. And, remember, these were senators starting this call because senators can't start an impeachment investigation. An impeachment investigation must start in the House. But the House does not have to be worried about proof beyond a reasonable doubt, either, and clearly there are members of the House who already think there's plenty to investigation in terms of the attorney general's forthrightness.

RAY SUAREZ: Well, Lee Casey, the professor has put a lot out there. Let's try to separate some of these issues out.


Addressing inconsistencies

Lee Casey
Former Justice Department Official
If you look back on various of these issues, different people have said different things. That doesn't mean any of them are committing perjury.

RAY SUAREZ: First of all, he broadens the scope. He says, not just the discrepancy over the authorization of the surveillance program...


RAY SUAREZ: ... but the testimony of Monica Goodling regarding the use of politics in screening appointees and people already serving, over the attorney general's recall of meetings with the so-called gang of eight, the responsible members of Congress for intelligence and surveillance authorization, over prior warning, whether there had been FBI abuse of the wiretap program. He's saying there's a body of things to ask about, not just this program. What do you say about that?

LEE CASEY: Well, I think, first, with respect to the inconsistencies in testimony, yes, if you look back on various of these issues, different people have said different things. That doesn't mean any of them are committing perjury; they may well simply have different recollections, different viewpoints.

With respect to the question whether there really was a politicization of the hiring process, as Ms. Goodling suggested, at the Justice Department and whether that involved anyone other than her, I think the department is already engaged in an investigation of that. I think the inspector general's office at the department and the Office of Professional Responsibility are more than capable of moving that ball forward.

RAY SUAREZ: Now, what about what perjury is and whether it's a different thing in a court of law, as alluded to by the professor, or in the context of a congressional hearing? What are we talking about here when we say perjury, as opposed to misleading or dissembling or lying or any of the other synonyms that people use?

LEE CASEY: Right. Well, the question of whether there is a separate crime for misleading Congress, I think in order to actually prosecute, you will have to prove, whether you call it perjury or misleading Congress, that the attorney general deliberately misstated a material fact with the intent of misleading Congress. I just don't see that on the record.

And, you know, in terms of an investigation, the statements are pretty much out there. They're on the record. We can all read them. I think what we have here is a man who is properly being very careful about how he describes things, and Congress then coming in, or these various senators, coming in and saying, "Well, you didn't say it the way we wanted you to say it, so it's perjury." I mean, that is simply -- that's a Mike Nifong moment. I mean, that's just not what perjury is.

An appointed official's obligations

Peter Shane
The Ohio State University
It's not something that the Democrats are going to drop.

RAY SUAREZ: Well, Professor, is someone who is appointed by the president but confirmed by the Senate obliged by the spirit or the letter of the law not to purposefully obscure or mislead or try to use circular testimony to evade what is being asked by his questioners?

PETER SHANE: Well, I think someone subject to advice and consent has the same obligation testifying before Congress that every other witness before Congress has, and that is to remain within the bounds of the statutes that prohibit false statements to Congress or perjury.

Again, I think, you know, Mr. Casey is correct in stating that this would not be easy to prove to a court of law, but without investigating the veracity of what the attorney general was saying and what the other witnesses were saying, it's impossible to make that judgment.

And this does, again, have to be seen in a larger context. Alberto Gonzales has been the point-person for the most aggressive administration in history with regard to arguing for the breadth of executive prerogative. He cannot be involved in statement after statement that appears to be dodging these issues and minimizing what's going on in a way that's inconsistent with other witnesses and not expect to be investigated. It's not something that the Democrats are going to drop.

RAY SUAREZ: What about that idea, that not only are the questions at the heart of this so important, but the principle that, if you get called before the Senate and take an oath, it's so important that you tell the truth, that this really bears further examination?

LEE CASEY: Well, I think clearly when you get called before the Senate, you have to tell them the truth. But Attorney General Gonzales is also subject to legal requirements with respect to classified information. And the original program -- we were, in fact, speculating in many ways about it, because it has never been revealed.

The program that was leaked in December of 2005 is the Comey program. It is not the program that was discussed in the evening when they went to Attorney General Ashcroft's hospital room. That program we know almost nothing about. We can speculate about it.

And for Attorney General Gonzales to come out and say, "Well, this was the same program," he would be revealing classified information and perhaps subject to prosecution under other laws. He's in an impossible position here.

RAY SUAREZ: Well, the White House said earlier today confusion is inevitable when complicated classified activities are discussed in a public forum. To be continued, gentlemen, thank you both.

LEE CASEY: Thank you.

PETER SHANE: Thank you.