Gonzales Memo: Extraordinary Access to DOJ Files

A new wrinkle over the apparent politicization of the Department of Justice (DOJ) emerged on Tuesday during a Senate Judiciary Committee hearing when a freshman Democratic lawmaker revealed the contents of a May 2006 memo. The memo, signed by embattled Attorney General Alberto Gonzales, granted Vice President Dick Cheney extraordinary authority to review active federal civil and criminal investigations at the DOJ.

At the time the memo was signed by Gonzales, Cheney's former chief of staff, I. Lewis "Scooter" Libby, was preparing his defense on obstruction of justice and perjury charges involving the leak of covert CIA operative Valerie Plame Wilson's name. Also, the special prosecutor who secured an indictment in the case on behalf of the government was reportedly trying to determine whether Cheney and numerous other White House officials also unmasked Plame's identity to reporters and lied about it to a grand jury and FBI investigators. Cheney had been interviewed about his role in the leak in 2004.

Gonzales testified on Tuesday before the Judiciary Committee on a wide range of legal issues under Congressional scrutiny.

Under intense questioning by Senator Sheldon Whitehouse (D-Rhode Island), Gonzales was shown a copy of the May 4, 2006 memo he signed authorizing Cheney, his chief of staff and his attorney to enter into direct discussions with Gonzales "regarding any matter within the Justice Department."

"The Attorney General may communicate directly with the President, Vice President, their Chiefs of Staff, Counsel to the President or Vice President, Assistant to the President for National Security Affairs, Assistant to the President and Homeland Security Adviser, or the head of any office within the [Executive Office of the President] regarding any matter within the jurisdiction of the Department of Justice," states the memo. Moreover, the memo says Gonzales's staffers were also given authority to communicate directly with the officials in the office of the president and the office of the vice president on DOJ matters.

The issue is of particular concern to lawmakers and the legal community because the DOJ historically operates independently of the administration and without political interference of any kind. A similar memo was signed by former Attorney General John Ashcroft in 2002, but limited discussions between the DOJ and the White House to the office of the counsel of the president.

Gonzales's memo, on the other hand, seems to authorize discussion about pending DOJ cases to virtually hundreds of White House officials, and it seems to lend credibility to the assertion that perhaps some high-profile public corruption cases involving Republican lawmakers were scuttled due to interference by the Bush administration.

Elizabeth de la Vega, a former assistant US attorney and author of the book "US v. Bush," said Gonzales's memo is troubling because it supports claims the DOJ's first priority was to adhere to White House policies, as opposed to upholding the law.

"Alberto Gonzales's May 6 memo is nothing less than a subterfuge to open the doors of the Department of Justice to a seemingly endless number of people in both the president's and the vice president's offices, while purporting to shut those same doors," said de la Vega. She added, "As the attorney general's memo acknowledges, the work of the Department of Justice must be carried out impartially. It is for this precise reason that communications between the DOJ and the members of the executive branch must be strictly limited to avoid either the appearance of, or the fact of, political influence. The memo gives lip service to that concept, but in fact imposes 'rules' that are almost meaningless in effect. Not unlike the Dodo race in 'Alice in Wonderland,' it's as if 'Everybody has won and all shall have prizes.'"

Paul Charlton, the former US attorney for Arizona who was fired in December, agreed. In an [4] interview [4] with Truthout earlier this month, Charlton said one problem that plagues the DOJ is Gonzales has not behaved as an independent-minded prosecutor whose first concern is upholding the law. Charton said Gonzales continues to act like President Bush's "consigliere," and has failed to shed his previous title as White House counsel since being appointed attorney general. Gonzales was White House counsel from 2001 till February 2005, and also was Bush's personal attorney when the president was governor of Texas.

Whitehouse appeared to suggest as much, questioning Gonzales about the reasons Cheney would need to be involved in any criminal or civil matter under scrutiny by the DOJ. Gonzales said he did not recall the contents of the memo, and did not respond directly to Whitehouse's query. But, Gonzales said, he was "troubled" by the revelation. Gonzales did not say whether Cheney sought information about any of the DOJ's active investigations.

Tuesday's hearing, once again, saw the attorney general stating he could not recall specific meetings and conversations with underlings, vehemently disputing testimony by former DOJ staffers who declared Gonzales misled Congress and knew far more about the attorney firings and other issues than he has let on.

As has become common with all of Gonzales's appearances before various Congressional committees this year, he failed on Tuesday to provide responses to many of the committee's questions, and in other instances contradicted his own testimony given earlier this year. Senator Arlen Specter (R-Pennsylvania), the ranking Republican on the Judiciary Committee, excoriated Gonzales, suggesting a review of his sworn testimony could lead the committee to bring perjury charges against the embattled attorney general.

The committee intends to "review your testimony to see if your credibility has been breached to the point of being actionable," Specter told Gonzales. Specter added that a special prosecutor may need to be appointed to help unravel the circumstances behind the White House's involvement in the firings.

Charlton said appointing a special prosecutor may be the only way Congress will be able to find out whether the attorney firings were politically motivated and what role the White House played in the dismissals. Charlton said he believes an internal DOJ probe currently underway may conclude a special prosecutor must be appointed.

Charlton, who said he believes he was fired last year for refusing to pursue the death penalty against a drug supplier, said Congress should continue its probe even in the absence of a smoking gun. He said the Department of Justice Office of Inspector General and the DOJ's Office of Professional Responsibility recently interviewed him. Charlton said questions he was asked during that interview provided him with new information into the circumstances behind the firings. However, he was unwilling to share the details of what he has learned thus far because the probe is ongoing.

"I came out [of the interview with the inspector general] with new information, and that information only further solidified my belief that [Congress] needs to continue this investigation," Charlton said earlier this month. "I can say that at some point in time the inspector general is going to need to analyze the evidence he has at a certain date and determine whether a special prosecutor needs to be appointed to assist him."

Gonzales retains the full support of President Bush even as the attorney general faces renewed calls by lawmakers to resign - if for no other reason than to allow the DOJ to regain its integrity. Gonzales made it clear on Tuesday he has no intention of stepping down, forcing lawmakers to rethink how they intend to hold him responsible for the scandals that have taken place in his department, under his watch.

Bud Cummins, the former US attorney in Little Rock, Arkansas, who was forced out of his position and replaced by a protege of Karl Rove, said he believes the fallout from the scandal will continue to affect the integrity and credibility of the DOJ unless the White House replaces Gonzales - a move Bush has said he is unwilling to make.

"I think a new attorney general would be helpful," Cummins said in an [3] interview [3] with Truthout in June.

Cummins said he has a difficult time believing Gonzales's sworn testimony before Congress earlier this year. In that testimony, the attorney general stated he could not recall the events that led to the firings of Cummins and the other US attorneys last year.

"It's disappointing to see someone with that much authority and responsibility be so unwilling to take responsibility," Cummins said. "I don't think I'm alone in having difficulty believing all [of Gonzales's] claims that he doesn't really remember meetings that he was in. It's been maddening to me to see an attorney general of the United States claim that he was responsible for a decision and he owns it, but he doesn't know why it was made and he doesn't know who made it. That's kind of crazy."

John McKay, the former US attorney for western Washington State, [1] told Truthout [1] he believes Gonzales knows the identity of the officials who selected the US attorneys for termination, but Gonzales has lied to Congress in order to protect the Bush administration. McKay believes his ouster was due in part to the fact that Republicans were angry that McKay did not convene a federal grand jury to pursue allegations of voter fraud related to the 2004 governor's election in Washington State. In that election, Democrat Christine Gregoire defeated Republican Dino Rossi by a margin of 129 votes.

David Iglesias, the former US attorney for New Mexico, [2] said [2] Gonzales's continuous efforts at stonewalling Congress have led to low morale of US attorneys around the country. Iglesias said "getting a new attorney general" is the only way the DOJ will ever be able to repair its shattered image and restore its credibility with the American public. Iglesias said he believes he was fired because he refused to bring criminal charges against individuals pertaining to allegations of voter fraud.

Tuesday's contentious hearing came on the heels of Congressional contempt charges the House Judiciary Committee approved on Wednesday against former White House Counsel Harriet Miers and President Bush's chief of staff, Joshua Bolten. Miers and Bolten cited Bush's assertion of executive privilege in both refusing to turn over internal executive branch documents and in failing to testify before the panel earlier this month about the US attorney dismissals. Last week, White House officials said if Miers and Bolten are held in contempt, President Bush would instruct the DOJ not to permit the US attorney for the District of Columbia to impanel a grand jury, on grounds it would interfere with Bush's assertion of executive privilege.

Gonzales refused to answer a question posed by Leahy as to whether Gonzales, as head of the Justice Department, would allow the White House to take such extraordinary action and impede Congress's ability to investigate the matter.

"Your question relates to an ongoing controversy which I am recused from," Gonzales told Leahy. "I'm not going to answer that question."

Lawmakers hammered away at Gonzales time and again, declaring his ability to lead the nation's 93 US attorneys was marred by his underhanded tactics.

In an audacious move, Gonzales asked the senators on the Judiciary Committee to begin revamping the very law he and Bush administration officials stand accused of circumventing since 9/11 so they could spy on American citizens without a warrant. In response, the senators picked apart Gonzales, with Specter telling the attorney general he had absolutely zero credibility left.

[1] Please see Truthout's interview with John McKay, the former US attorney for Western Washington State
[2] Please see Truthout's interview with former US attorney for New Mexico David Iglesias
[3] Please see Truthout's interview with Bud Cummins, the former US attorney for Little Rock
[4] Please see Truthout's interview with former US attorney for Arizona Paul Charlton

Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

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