Bush, Gonzales and Specter: Losing a Dogfight?

Sometimes you think you're winning a cat-and-mouse game, but it turns out you're losing a dogfight.

Such was the case in the summer of 1973 when, unbeknownst to most of the public - particularly myself because I spent nearly every waking hour of that summer driving an ice cream truck - Richard Nixon and his wily cats John Erlichman and Robert "Bob" Haldeman were trying to appease the public and Congress by batting around half-truths about the Watergate burglary and cover-up. They thought they had a winning strategy. Indeed, in July of 1973, Henry Kissinger told Nixon: "In a year's time your Congressional opponents are going to look like a bunch of dogs snapping at your heels." Clearly, given that the House of Representatives passed three Articles of Impeachment against Nixon a year later, a large number of people in that White House did not understand that their cat-and-mouse game had turned into a dogfight.

Based upon the recent performance of Republican Senator Arlen Specter, it appears that the Bush White House may be operating on the basis of similar misapprehensions. On August 1, Specter appeared on national TV to announce his conclusion that Attorney General Alberto Gonzales was a "wily witness" whose "shrewd and vague" answers deliberately misled Congress. The ranking Republican on the Senate Judiciary Committee also believes that Gonzales failed to tell the whole truth and had played a "cat-and-mouse game" with the committee. Nevertheless, Specter told the American people that because Gonzales's statement that there had been "no serious disagreement" about the Terrorist Surveillance Program was possibly literally true - a dubious argument of itself - it did not meet the "very tough standard on perjury," required under the law.

Senator Specter needs to look in the mirror. He, in concert with the White House, is playing his very own cat-and-mouse game, talking tough on Gonzales while presenting a false and, to some degree, irrelevant, picture of the applicable law in order to convince the public that neither a special prosecutor nor impeachment is warranted. Specter knows that the question raised by Gonzales's conduct has never been whether there was a single instance of perjury.

Alberto Gonzales has made repeated sworn statements in appearances before both the House and Senate Judiciary Committees about a multitude of topics - warrantless wiretapping, the US attorney firings, illegal detention and torture memos, to name a few - that are self-contradictory, disproved by external evidence, or both. As Senator Specter, the former district attorney of Philadelphia, well knows, each of these false statements under oath could be a separate perjury charge.

Even more damning to Specter's desired image as the law-and-order man, however, is that, as he well knows, the statement that he and the White House have falsely attempted to present as the sole focus of a perjury inquiry was not a sworn statement at all. On February 6, 2006 - the day Gonzales first told the Senate Judiciary Committee that "there has not been any serious disagreement about the [Terrorist Surveillance Program]," - he was not under oath. In other words, the "very tough" perjury statute that Specter is taking such pains to raise as a straw-man argument and then knock down, does not even apply to Gonzales's testimony on that day.

But other criminal statutes do apply. Specter was kind enough to tell us what some of those provisions were before the February 6 hearing began.

In the halcyon days of 2006, of course, the Republicans were in charge and Specter, chairman of the Judiciary Committee, did not want to place the attorney general of the United States under oath. When the Democrats voiced extremely energetic opposition to that maneuver, Specter responded that it was unnecessary to swear Gonzales as a witness because other statutes besides the perjury statute provided "ample punishment for a false official statement or a false statement to Congress." Specifically, Specter noted two of the statutes that had been used to charge Reagan's former aides, Admiral John Poindexter and Oliver North, for lying to Congress about illegal arms sales during the course of the infamous Iran/contra scandal: one was 18 USC Section 1001, which makes it illegal to make a false statement to Congress regarding a matter within its jurisdiction; another was 18 USC Section 1505, which prohibits obstructing a Congressional investigation.

The senior senator from Pennsylvania was correct. Both of those statutes do apply to Alberto Gonzales's unsworn testimony on February 6. They also apply to Gonzales's sworn testimony on other days. But, now that the Democrats are in charge of the Senate Judiciary Committee, Specter seems to have forgotten about them. To understand why, we need only compare one of those statutes - Section 1001 - to the perjury statute.

Perjury, which is proscribed by 18 USC Section 1621, makes it illegal to state, under oath, any matter of importance which a person "does not believe to be true." Because the statute is so narrowly worded, the Supreme Court has - as Specter took it upon himself to explain the other night - held that "literal truth" is a defense. If the witness's statement is true, under any reasonable interpretation, in other words, there can be no perjury conviction.

Like the perjury statute, Section 1001 requires that the falsehood have something to do with a matter of importance, a "material" issue. Whether Alberto Gonzales was wearing dark blue or black socks when he went to visit then-Attorney General John Ashcroft at the hospital would not be material. Whether Gonzales was going there to bring him a greeting card or to have him reauthorize a warrantless spying program would be material.

Unlike the perjury statute, as Arlen Specter pointed out before Gonzales began to testify on February 6, Section 1001 does not require that the person be under oath. The person does have to be providing information on a subject that Congress has jurisdiction to oversee, however. The executive branch's compliance, or lack thereof, with FISA and other laws relating to surveillance would definitely fall into that category.

More important, even though it is referred to as the "False Statements Statute," Section 1001 covers much more than simply lying; it is more akin to a fraud statute in that it covers the whole gamut of ways to deceive. This is what the statute says: A person violates Section 1001 if he: (1) falsifies, conceals or covers up by any trick scheme or device a material fact or (2) makes or uses any materially false, fictitious or fraudulent statement or representation.

What does this mean? It means that "technical truth" is not a defense. You can be convicted of making false statements to Congress in violation of Section 1001 if you make statements that are worded in ways that are deliberately ambiguous, misleading or deceptive. You can be convicted of violating Section 1001 if you offer half-truths purposely intended to conceal other important information. It means, in other words, that Gonzales's statement, described by Arlen Specter as "shrewd and vague" designed deliberately to mislead, is precisely the type of statement that gets people indicted for violations of Section 1001 in federal districts around the country every week.

The truth is, as Arlen Specter is well aware, this scandal is not just about perjury. Gonzales's lies are merely a subset of the shameless, and shameful, course of deception that has been carried out by the White House with regard to their warrantless domestic wiretapping, and so many other areas of their governance, over the past six years. This prolonged deceit is a crime, too, of course: It's a conspiracy to defraud the United States in violation of Section 371 and, even worse, a massive abuse of executive power.

This is a high-stakes cat-and-mouse game the Republicans are playing, but if the Democrats remain dogged enough, it is a game the Republicans should not win. Gonzales's statements may be ambiguous, but the law is not.

Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the US Attorney's Office for the Northern District of California. Her pieces have appeared in The Nation, the Los Angeles Times and Salon. She writes regularly for TomDispatch.com. She is the author of "United States v. George W. Bush et al." which has been optioned for a movie now in preproduction. (www.USvBushmovie.com). She may be contacted at ElizabethdelaVega@Verizon.net.

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