It is clear that the pressure on AG Gonzales over the United States Attorney firings is not lessening. Within the last few days it has been prominent in the New York Times here, LA Times here, and Washington Post here. But perhaps the most interesting aspect to now note is that AG Gonzales appears to be on the defensive, offering his explanations on the front of the DOJ page. His testimony is here and a statement from his acting director or public affairs is here.
Category: Prosecutors
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The United States District Court for the District of Columbia issued an order of immunity (here) for Monica Goodling, former White House liaison for Attorney General Alberto Gonzales. Once she is subpoenaed to appear before the House Judiciary Committee and formally asserts her Fifth Amendment privilege, the order will be served on her and she must comply. Contrary to what some media reports imply, however, an order of immunity under 18 U.S.C. Sec. 6005 does not mean she cannot be prosecuted, or cannot be charged with any crimes for things she testifies about. That type of immunity is called "transactional" immunity, and is rarely given in federal criminal investigations, although it was the type of immunity grant provided to Monica Lewinsky during the Independent Counsel’s investigation.
The form of immunity authorized by the statute is "use/fruits" immunity, and pursuant to the Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441 (1972), the government is prohibited from using the testimony itself or any information derived from the testimony to prosecute the immunized witness. If it does prosecute the immunized witness, it must meet a "heavy burden" of showing that all evidence was derived from sources unconnected to the testimony and the fruits of the statements. While it is very difficult to prosecute an immunized witness, it is not legally impossible. That said, given the wide publicity Goodling’s testimony is likely to receive, in fact it will be almost impossible to pursue charges for her role in the U.S. Attorneys firings, and perhaps on the issue of using political criteria to hire Assistant U.S. Attorneys — think Ollie North on this one. The next step will be scheduling a hearing for Goodling to testify and issuing her a subpoena to compel her appearance. (ph)
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Attorney General Alberto Gonzales made another appearance on Capitol Hill, this time before the House Judiciary Committee, to answer questions about the firing of nine U.S. Attorneys in 2006 — add Todd Graves from the Western District of Missouri to the list. From reports about the testimony (see L.A. Times story here), the questioning was not nearly as contentious and Gonzales was much more relaxed, perhaps knowing that the pressure was off after having survived the earlier hearing before the Senate Judiciary Committee. His memory was not much improved, and he add almost nothing to his earlier testimony. Moving beyond the focus on the U.S. Attorney’s, Representative James Sensenbrenner, former chairman of the Judiciary Committee who lost his position when the Democrats took control of the House, asked Gonzales about another corruption investigation, this time inquiring about the status of the inquiry into William Jefferson, a Louisiana Democrat in whose freezer agents discovered $90,000 in cash. Asking about a continuing investigation invites a single response, which Gonzales gave — No comment. I wonder why he asked?
Now that the House had its fill of Gonzales, the investigation moves on to others who could be more enlightening, particularly the testimony of Monica Goodling, who the Committee voted to immunize so that she can testify about her role in the firings. Whether she has much to add to the story remains to be seen, and I suspect the investigation may well wind down unless the Congressional Committees decide to pursue a confrontation with the White House over obtaining testimony from Karl Rove and Harriet Miers. (ph)
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Just in time for Attorney General Alberto Gonzales’ testimony before the House Judiciary Committee, the Washington Post reports (here) that a ninth U.S. Attorney identified himself as having received a telephone call asking him to resign, this time in January 2006. Todd Graves, the former U.S. Attorney for the Western District of Missouri (Kansas City), said that Michael Battle, then head of the Executive Office for U.S. Attorneys (EOUSA) who also delivered the bad news to the other eight prosecutors, asked him to resign to "give another person a chance." That was the same reason given to Bud Cummins when he was asked to resign his position in Arkansas. The person appointed to replace Graves as the interim U.S. Attorney was Bradley J. Schlozman, who had been in the Civil Rights Division and clashed with Graves over filing a law suit related to Missouri’s voter rolls. The U.S. Attorney’s Office also obtained an indictment related to voting fraud shortly before the 2006 election. Schlozman, who is now in the EOUSA, is supposed to testify before the Senate Judiciary Committee. His replacement as U.S. Attorney is John Wood, who was confirmed by the Senate on April 11, 2007. According to his biography (here):
Mr. Wood joined the Bush Administration in 2001 and held several prominent positions prior to becoming U.S. Attorney. He has previously served at the Department of Justice as a Deputy Associate Attorney General and as a Counselor to Attorney General John D. Ashcroft. He has also worked at the White House as Deputy General Counsel for the Office of Management and Budget. His last job prior to being nominated by the President to serve as U.S. Attorney was as Chief of Staff for the U.S. Department of Homeland Security, which is the third largest department of the federal government with approximately 180,000 employees and an annual budget of over $40 billion.
(ph)
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At a forum at Seattle University School of Law, former U.S. Attorneys John McKay (Western District of Washington) and David Iglesias (New Mexico) said that they expect criminal charges to be filed related to their firings — along with six other U.S. Attorneys — and from the subsequent Congressional investigations. McKay, who is now on the Seattle faculty, speculated that obstruction of justice charges could be brought for interference with public corruption investigations in San Diego and New Mexico. McKay and Iglesias also raised the possibility of perjury charges from the testimony of Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty when they said the dismissals were performance-related. A Seattle Times article (here) discusses the statements by McKay and Iglesias, and quotes from a statement issued by a Department of Justice spokesman that reads in part, "After several hours of testimony by the Attorney General, over 6,000 pages of documents released to Congress and hours of interviews with other senior DOJ officials, it is clear that the Attorney General did not ask for the resignation of any individual in order to interfere with or influence a particular prosecution for partisan political gain."
Will there be any criminal charges? The decision of the House Judiciary Committee to grant immunity to Monica Goodling, Gonzales’ former White House liaison, makes it unlikely she will be charged. The odds of the AG or DAG being charged are probably just as unlikely because their statements were couched in vague terms that would make it very difficult to meet the standard for a perjury prosecution. This may be more of a publicity grab than anything else. Then again, with many e-mails still unavailable, particularly from the White House, you never know because e-mails contain some of the darnedest things. As McKay said, "This is going to get worse, not better." We’ll see how much worse. (ph — thanks to YH)
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Although the controversy over the firing of eight U.S. Attorneys has largely receded from the media’s view, the Senate Judiciary Committee is pressing forward by issuing a subpoena to Attorney General Alberto Gonzales requiring the production of e-mails to or from senior Presidential adviser Karl Rove. The subpoena marks a turn in the investigation for the Senate Committee because this is the first subpoena for documents it has issued, although its House counterpart has subpoenaed records. The subpoena (here) requires production of the following:
Complete and unredacted versions of any and all emails and attachments to emails to, from, or copied to Karl Rove related to the Committee’s investigation into the preservation of prosecutorial independence and the Department of Justice’s politicization of the hiring and firing and decision-making of United States Attorneys, from any (1) White House account, (2) Republican National Committee Account, or (3) other account, in the possession, custody or control of the Department of Justice, including any such emails that were obtained by U.S. Attorney Patrick Fitzgerald as part of the investigation into the leak of the identity of a covert CIA officer by officials in the Administration that led to the conviction of I. Lewis “Scooter” Libby.
The third source is particularly interesting because it seeks e-mails obtained previously by Patrick Fitzgerald in the Valerie Plame leak investigation, which stretched well into 2005. By subpoenaing the Department of Justice and not the White House, the Committee should avoid any claim of executive privilege to prevent the production, and seeking the Special Counsel’s documents means that some internal White House e-mails may be available. One problem may be if the Department of Justice claims the e-mails gathered by Fitzgerald are grand jury material and therefore protected by the secrecy requirement of Federal Rule of Criminal Procedure 6(e) that prevents disclosure of such information without prior judicial approval.
A bi-partisan group of Judiciary Committee members (Leahy, Specter, Feinstein, Grassley, Schumer, and Sessions) also sent a letter (here) to Gonzales requesting production of the 2006 confidential order delegating in large measure authority to hire and fire political appointees in the Department of Justice to the AG’s chief of staff (Kyle Sampson) and White House liaison (Monica Goodling) . The order had gone unmentioned in Gonzales’ earlier testimony before the Committee, and the Senators expressed more than a little bit of exasperation at the failure to turn it over earlier:
The Committee has issued multiple requests for the Department to produce documents in its custody, possession or control related to the Committee’s investigation into the firings of U.S. Attorneys and alleged politicization at the Department, and to provide the Committee with the precise scope of the production. Despite these requests, the order has not been produced and its existence has not been disclosed. The order appears to be responsive to the Committee’s requests insofar as it dealt with the appointment and removal of inferior officers who are not subject to Senate confirmation, which would include interim and acting U.S. Attorneys. Consequently, we ask that you please produce the order and all related documents immediately.
Is the firing of the U.S. Attorneys headed back to the front pages? An AP report (here) states that the Department of Justice’s Inspector General and the Office of Professional Responsibility are investigating whether Goodling used political criteria in hiring Assistant U.S. Attorneys, a career position insulated from such considerations. It’s unclear why someone in the AG’s office would even get involved in hiring decisions in the local federal prosecutors offices aside from the appointment of the U.S. Attorney, even if it only occurred in offices headed by interim or acting U.S. Attorneys. The fact that the AG’s White House liaison might have had a say in the hiring of line AUSAs raises substantial questions about the politicization of the U.S. Attorney’s Offices. The Congressional committees show no sign of moving on from the investigation, and the House Judiciary Committee will hear testimony from Gonzales later in May, so it should stay alive at least that long. The internal DOJ investigation of Goodling may disrupt plans for Congress to grant her immunity if her participation in hiring decisions violated federal law. (ph)
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The Department of Justice continues to dribble out documents related to the firing of the eight U.S. Attorneys, releasing more e-mails on April 26 and 27, but also withholding over 160 e-mails and memos held by Kyle Sampson, the former chief of staff for Attorney General Alberto Gonzales. According to the list of withheld documents (here), the e-mails were sent from December 8, 2006, the day after seven of the U.S. Attorneys received the notice of their termination, until March 8, 2007, shortly before Sampson resigned his position. He is listed as the custodian of these records. The e-mails relate largely to dealing with inquiries from Senators and the press about the firings, and there are eight documents listed that relate to the firings.
The usual privilege list submitted in civil litigation or in response to a grand jury subpoena gives the reason(s) why the document is withheld, such as the attorney-client privilege or protected work product. In this case, however, it is not clear what the reason is for withholding the documents from the House Judiciary Committee, which has demanded a wide range of records related to the issue. To this point the Department of Justice has not asserted a deliberative privilege or the executive privilege, and communications with Congress are unlikely to be subject to any claim for protection. More documents are sure to emerge, but any list of withheld documents is sure to pique the interest of the House and Senate Judiciary Committees. An AP story (here) discusses the latest set of documents. (ph)
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The House Judiciary Committee voted 32-6 to authorize a request to the U.S. District Court for an order of use immunity for Monica Goodling, the former senior adviser to Attorney General Alberto Gonzales, to permit her to testify about the firing of eight U.S. Attorneys. Unlike Gonzales’ chief of staff, Kyle Sampson, who testified before the Committee, Goodling’s lawyer sent a letter to the Committee that she would assert the Fifth Amendment in response to a subpoena. Judiciary Committee Chairman John Conyers made a statement (here) explaining the reason why the Committee decided to proceed with an immunity order, even though it does not appear that Goodling has indicated what she will say in her testimony by way of a proffer:
[Goodling] was apparently involved in crucial discussions over a two-year period with senior White House aides, and with other senior Justice officials, in which the termination list was developed, refined, and finalized. She was also in the small group of senior Justice lawyers who prepared Deputy Attorney General Paul McNulty and his Principal Associate, William Moschella, for congressional testimony that we believe inaccurately portrayed the surrounding circumstances.
So Ms. Goodling appears to be a key witness for us, as to any possible undue or improper interference, and as to any internal discussions as to how forthcoming to be to Congress. But she has notified the Committee that she would invoke her Fifth Amendment privilege against self-incrimination were she called to testify. And I don’t think at this point that all of her potential grounds for invoking the privilege can be dismissed out of hand.
The procedure for obtaining immunity for a witness in a Congressional proceeding is governed by 18 U.S.C. Sec. 6005(b), which provides:
Section 6005(c) does provide that the Department of Justice can intervene to request a delay in granting the immunity order, for up to twenty days, on such grounds "as the Attorney General may specify." One obvious reason to request a delay is if the immunity grant will interfere with a continuing criminal investigation, although that does not appear to be the case in this situation. Conceivably, the Attorney General could seek to resist an immunity grant on other grounds, such as executive privilege or Congressional overreaching, which would create quite a stir at this point.If the district court issues the use immunity order, then the next step will be to subpoena Goodling and schedule her testimony. The House Judiciary Committee wants Gonzales to testify on May 10, and has also issued a subpoena to the Republican National Committee for information about e-mail accounts used by senior White House aides that may not have been turned over already. Look for Goodling’s testimony to come near the date of Gonzales’ next Capitol Hill appearance for questioning about the firing of the U.S. Attorneys. An AP story (here) discusses all the latest happenings in the investigation. (ph) -
The heretofore little-known Office of Special Counsel should get a lot more publicity as it announced a broad investigation of possible misconduct related to the firing of at least one U.S. Attorney and other potential violations of the Hatch Act, including the conduct of senior White House aide Karl Rove. A Los Angeles Times story (here) notes that a spokesman for OSC stated that it is forming an internal task force to look into the following areas: "It will focus on whether White House political concerns improperly intruded on the decision to fire at least one U.S. attorney; whether Rove’s office staff or others violated the Hatch Act in briefing Cabinet agency managers on political developments and Republican campaign goals; and whether the White House improperly used Republican National Committee e-mail accounts for official business."
For those who follow corruption investigations, the OSC is hardly a household name. According to its website (here), the small (106 employee) office "is an independent federal investigative and prosecutorial agency. Our basic authorities come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act." Among its responsibilities are dealing with government whistleblowers and PPPs ("prohibited personnel practices" in the parlance of Washington anagrams), and dealing with possible Hatch Act violations, which involve prohibited political activities by government workers. The Special Counsel is Scott J. Bloch, who was appointed to the position for a five-year term by the President and approved by the Senate. According to his biography on the OSC website:
Mr. Bloch brings over 17 years of experience to the Office of Special Counsel, including litigation of employment, lawyer ethics, and complex cases before state courts, federal courts and administrative tribunals. He briefed and argued cases before state and federal appellate courts.
From 2001-2003, Mr. Bloch served as Associate Director and then Deputy Director and Counsel to the Task Force for Faith-based and Community Initiatives at the U.S. Department of Justice, where he worked on First Amendment cases, regulations, intergovernmental outreach, and programmatic initiatives. Before serving in the Justice Department, he was a partner with Stevens & Brand, LLP, of Lawrence, Kansas, where he practiced in the areas of civil rights law, employment law, and legal ethics. Mr. Bloch tried jury trials before state and federal courts, representing employees and employers in cases involving whistleblower and other retaliation claims, as well as civil rights claims. He worked on important cases that set precedents in the field of legal ethics, including a ground-breaking Texas case that changed the way plaintiffs’ lawyers handle mass tort cases.
Bloch does not have much direct prosecutorial experience, and this investigation will throw a spotlight on a small office at the center of media attention. How it does its job will be watched carefully. In addition, the constitutionality of the OSC has been questioned by Professor Michael Froomkin on the Discourse.Net blog. Professor Froomkin writes (here): "There’s some question as to whether this statute is constitutional; if it isn’t, then the whole office is unconstitutional and all its acts could be declared void." Getting bogged down in a constitutional fight won’t make the investigation move any faster. (ph)
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If Attorney General Alberto Gonzales thought his testimony before the Senate Judiciary Committee went well, a quick reading of a letter from Chairman Patrick Leahy and Ranking Member Arlen Specter will disabuse him of that notion. The letter requests — perhaps even demands — a response within a week that clarifies the many instances in which the Attorney General professed ignorance or a lack of recall about the process leading to the firing of eight U.S. Attorneys in 2006. The letter (here) puts things quite bluntly:
You spent weeks preparing for the April 19th hearing. Yet during your testimony, in response to questions from Senators on both sides of the aisle, you often responded that you could not recall. By some counts you failed to answer more than 100 questions, by other counts more than 70, but the most conservative count had you failing to provide answers well over 60 times. As a result, the Committee’s efforts to learn the truth of why and how these dismissals took place, and the role you and other Department and White House officials had in them, has been hampered.
The questions asked by Senators should not have been a surprise. You were alerted in letters to you well in advance of last Thursday’s hearing. By letter sent April 4, you were asked to include in your written testimony a “full and complete account of the development of the plan to replace Untied States Attorneys, and all the specifics of your role in connection with that matter.” That account was not included in your written testimony nor in your answers to questions at the hearing. You were also alerted in advance of the hearing, by a letter sent on April 13, that you would be asked about information derived from the staff interviews of your senior aides. You were, nevertheless, unprepared to answer those questions.
While the Attorney General’s role in the firings had slid to the third page of the major newspapers (see earlier post here), I suspect it may move back to the front page soon. (ph)
MattBray.net 