Friday, March 16, 2007

Worse Than DOJing Questions on Squattergate? Legal Ethics Profs Speak Out About Gonzales Cutting Off OPR Wiretaps Investigation That He'd Just Learned Would Likely Target Gonzales

Posted by Alan Childress

Most media and blogs currently are understandably focusing their ethics antennae on the questions surrounding whether U.S. Attorneys were not allowed to stay on in their current post for political or worse reasons (thankfully not yet dubbed Squattergate), and dissembling about the replacement reasons afterwards (apparently "performance-related" in a public firing means not "loyal Bushies" in emails).  The WSJ law blog, for example, has certainly followed closely the legal profession ramifications of the prosecutor firings, and we had here posted on David Iglesias' dismissal and senatorial intervention.

Meanwhile, legal ethics landmarks Stephen Gillers (NYU) and Charles Wolfram (Cornell) have just been quoted agreeing that something somewhere else in Denmark is at the very least unethical:  the reported specific intervention of Alberto Gonzales with President Bush to have the latter cut off an ongoing DOJ Office of Professional Responsibility investigation into faulty domestic wiretapping by the NSA -- an investigation that then-AG Gonzales had recently learned from his staffers would likely focus on Gonzales.  Then the President himself intervened and denied security clearances to OPR investigators (though other offices investigating leaks about NSA surveillance to the New York Times were granted clearance), effectively shutting down the OPR investigation.  As the National Journal reports in Aborted DOJ Probe Probably Would Have Targeted Gonzales:

Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.

The National Journal quotes both Steve Gillers and Charles Wolfram as saying that this, if true, is wholly unacceptable.  The OPR had notified the AG's staffers that they were going to interview Jack Goldsmith in the DOJ Office of Legal Counsel (now a Harvard Law prof) about the wiretapping authorizations and their legality.  (He had had internal but famous pushback against Gonzales's view of their legality.)  "Law enforcement officials said that Gonzales's senior aides then informed him that OPR wanted to launch its inquiry by interviewing Goldsmith" and another DOJ lawyer.  Responds Gillers, apparently in understatement:  "If the attorney general was on notice that he was a person of interest to the OPR inquiry, he should have stepped aside and not been involved in any decisions about the scope or the continuation of the investigation."  If so, added Wolfram, Gonzales abused "the discretion of his office" for his own benefit.

In open response to this National Journal story on this new allegation, four Senators and a member of the House have now sent unbelievably powerful and irate letters to Gonzales demanding specific answers, now.  More pointed than any letter I saw them issue, or public question I have heard them ask, about the prosecutor firings.  And as of yet Leahy has not even written a letter; looking forward to that one.

Wolfram and Gillers are of course correct (and by the way, don't always agree in such media inquiries).  There is no good spin to this one.  I'd say that as unseemly and possibly perjurious as the prosecutor firing matter has become, this charge--if proved--would look a lot more like hard core obstruction of justice.  It is not yet on the New York Times' radar (as of now the focus is on the rock group Rove and the USAs), possibly because it does not hold the nationwide attention span of various firings in several home jurisdictions and public pronouncements about it being a "personnel matter" that only a few days later appear to be what magicians call misdirection.  (Or because the USA story suggests lying to Congress.)

But it will be.  The letters from congressional members with that tone, urgency, and specificity are by themselves news.  The agreement of noted ethicists that there is (my characterization) no other side to this issue--and there is not--will make it very hard to define away as mere politics, just internal DOJ personnel stuff, or the "everybody does it" canard.  The only denial has to be a factual one--that he did not so intervene, that he was not told he would be a likely focus, that he did not ask the President to stop the OPR from doing its normal investigation.  In other words, the only acceptable true answer to the congressional demand letters will have to be "It did not happen at all," because there is no way to spin this one into anything other than Actual Watergate without that being the right answer.  I can think of no acceptable reply that also includes an admission as to the underlying factual scenario.  This one is just too close to the public turning point of Watergate:  the firing of Archibald Cox.

Is it too late to switch a "most likely to succeed" vote at the upcoming 25-year Harvard Law School reunion, away from the Attorney General and toward the new governor of Massachusetts?  Go Class of '82!  Not really:  I am guessing that neither is eligible for "succeed" since Gonzales left a partnership at Vinson & Elkins for a . . . government job, much like classmate Deval Patrick.  (I glean this criterion from the fact that alumni questionnaires from every other institution I have dealt with survey my income with a default bracket of $0-50,000 or less, while Harvard starts at $0-250,000.  Thanks; makes it easier for me to fill out their forms by reflex and without any discerning calculation on my part.  And I see I understate Patrick's so-defined success; after heading DOJ's civil rights enforcement, reportedly "He went on to become executive vice president for Coca-Cola in 2001, and [then held] a year-long $2.1 million consulting stint with the company."  And he once was a partner at Hill & Barlow.) 

Yet I have to say I now am curious as to whether, when I had Archibald Cox for Constitutional Law -- or that time he gave a presentation describing the moment Robert Bork had delivered the message to him at home that he was fired ("It took a Yale man to fire a Harvard man," I recall Cox adding very dryly) -- was Alberto Gonzales sitting in that classroom too?  If so, law school teaches more real-world how-to things than people say.  I certainly recall that I first found out about Cox's firing while I was selling Cokes in the stadium aisles of a Jackson State football game [apparently part of Gonzales's bio story, his being Rice games, for having a poor youth to rise out of], and even as a kid, I--vividly, viscerally--could not believe how fundamentally wrong that was.

The world has changed since 1973.  Or even 1984.  There are no erased 18.5 minutes of analog audiotape never to be heard again.  Everything--everything--is on someone's hard drive somewhere.  The digital revolution is just too immutable to be spun very well.  If these allegations are true, this one deserves its own name and historical moment that is not just an echo of, or pun to, Watergate.  It is not just squattergate.  Yet I have to admit that it was eye-opening to see that the home offices of the National Journal are actually at 600 New Hampshire Ave. NW  here in DC -- and I would not be surprised if whoever leaked this story to them particularly is aware of that irony too.  At least I am pretty sure it was not Mark Felt.  But Hal Holbrook is still alive, and the dark Rosslyn, Virginia parking garage is just on the other side of the Teddy Roosevelt Bridge from the National Journal's offices in . . .The Watergate.

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Alan, this is a magnificent post. These allegations are incredibly serious, and obviously not everyone affiliated with the WH is willing to follow the same play book. Yes, there probably is a new deep throat. I think your analogies and comparisons will likely become more clear in the next few weeks. Thanks for putting this on our radar. bh.

Posted by: William Henderson | Mar 16, 2007 9:35:07 PM

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