Whitehouse Busts Gonzales for Trying to Bury DOJ's Internal Investigation

by emptywheel

Okay, the last of my series of posts on the AGAG hearing yesterday. I wanted to trace out the accusation that Sheldon Whitehouse seems to have launched against AGAG's whitewash DOJ investigation. This exchange came near the end of the hearing, just after Whitehouse pointed out that Gonzales had personally increased the number of people at the White House and DOJ who could communicate on pending criminal matters from 7 (under a policy developed with significant influence from Orrin Hatch) to 447.

Then Whitehouse started schooling Gonzales on the appropriate office to conduct an internal investigation, Office of Professional Responsibility (OPR) or Office of the Inspector General (OIG). What appears to have happened is that, as part of his attempt to claim to be trying to get to the bottom of the USA scandal, Gonzales ordered the OPR to conduct an investigation. Then, the OIG started an investigation on their own accord. Only after an acting Chief of Staff (and note--this is Chuck Rosenberg and not Kevin O'Connor, whom Gonzales has since picked to be his real COS) suggested OIG investigate the firings did Gonzales think of encouraging the OIG to do an investigation. But at that point, OIG was already investigating on their own accord. So the question Whitehouse wants to ask is why Gonzales chose OPR and not OIG to conduct the internal investigation.

(I'm going to present this out of order to try to clarify what Whitehouse did; Whitehouse did it kind of backwards, I think, so he could spring it on Gonzales unawares.)

Whitehouse makes it clear that Gonzales himself made the decision to ask OPR--and not OIG--to conduct the investigation.

WHITEHOUSE: ... And my last point is that it was originally your choice to refer this matter to the Office of Professional Responsibility, correct?

GONZALES: Yes, sir.

And Whitehouse points out that the OPR doesn't investigate anything relating to administrative issues--the issues at hand. Instead, the OPR's investigations are...

ordinarily limited to the conduct of lawyers in their conduct as lawyers, the things that might subject them to bar disciplinary activity, and there's really no relation between anybody's conduct here that's being questioned and their conduct as lawyers? 

Typical misconduct, this is your thing -- Brady violations, Giglio violations, Federal Rule of Criminal Procedure 16 violations, improper conduct before a grand jury, improper coercion or intimidation of witnesses, improper use of peremptory strikes, improper questioning of witnesses, introduction of evidence, misrepresentation as to court, improper opening and closing arguments, failure to diligently represent the U.S. and its government, failure to comply with court orders, scheduling orders, Hyde Amendment fees violations.

None of that has anything to do with what we're questioning today.

Elsewhere, Whitehouse points out that an OPR investigation wouldn't examine the key questions at hand--whether or not someone at DOJ was being politically influenced.

WHITEHOUSE: It does not evaluate their administrative actions. It does not evaluate whether they've subjected themselves to political influence.

And my question to you is: Who, in this entire process that led to the termination of the U.S. attorneys, was, at any point in this, acting as a lawyer, and not administratively?

(Gonzales doesn't respond to Whitehouse's question, and instead retreats to the land of fuzzy memories.)

Basically, Whitehouse is asserting that Gonzales chose the wrong office to investigate this matter, since all the potentially improper or illegal activities were administrative, not legal. So OPR, by definition, would never answer any of the questions Congress is asking about the USA Purge.

In addition to establishing that point, Whitehouse also points out that OPR's investigations do not result in public reports, whereas the OIG's results are made public.

WHITEHOUSE: OPR reports are ordinarily not public. OIG reports ordinarily are.

[snip]

WHITEHOUSE: I guess my final question to you, then, is: In choosing OPR as the place that you wish to refer this investigation, did you take into account that OPR does not ordinarily make their findings public

Whitehouse, it seems likely, has caught Gonzales at his game--he pawned off the internal investigation of this matter to the office that can't address any of the central issues and wouldn't release its results publicly. When Gonzales finally realizes the point Whitehouse is making, he claims his memory is fuzzy, but don't worry, he's been very forthcoming with this investigation. Go read the whole passage--it's Gonzales as his slimy worst.

Gonzales makes one more dodge. When Whitehouse asks for assurances that the joint OPR/OIG report be made public, Gonzales retreats to the old recusal stance. He can't make such assurances, he says.

WHITEHOUSE: ... Can we be assured that the results of the OPR/OIG investigation will in fact be made public?

GONZALES: Senator, I think -- as I indicated in response to your earlier question, that I am recused from the oversight of these two investigations. And so, as a technical matter, I'm not sure that's going to be a decision for me to make, quite frankly.

And Mr. McNulty, the deputy attorney general -- I advised to recuse himself. And so Paul...

WHITEHOUSE: Who do you talk to?

GONZALES: Paul Clement, the solicitor general.

That, it seems, is a really good issue we ought to push for--public release of both the OPR and OIG investigation report.

Comments

[Woodhall Hollow]

One of the reasons I sat through the 2nd round of questions was that I really wanted to see what Whitehouse would do next. (I loved how he went after Sampson!) I really wanted him to have more time with Gonzales. And the charts were really really damning. I wish the camera could've panned on Hatch's face (if he was even in the room anymore) during that unveiling.

He must've been quite a prosecutor!

[Rayne]

The question I hoped that Whitehouse would ask in this otherwise great line of inquiry was WHEN will the public see the OPR report. No timeline, no opportunity for followup.

[emptywheel]

Right, but Gonzales is right--AGAG has recused, so now we need to go after Clement. Clement appears to be a truly brilliant lawyer, who has defended things he doesn't believe in as effectively as he has defended things he does believe in. Problem is, he's a former clerk of both Silberman and Scalia with a big fondness for the Unitary Executive.

[bmaz]

Woodhall Hallow is dead on, Whitehouse was excellent. It sure makes a difference when ou have an attorney skilled at cross-examination (it really is an art) asking the questions.

EW - Reversing your order a little bit (hey you did) I am not sure that gonzales is right to rely on "recusing" himself on this topic. whether or not the report is made; that is ministerial and you wouldn't think subject to an ethical recusal consideration. Secondly, you are dead on about the relative duties, and the way the reporting of those duties is made, between the OPR and OIG respectively. There is only one possible reason for this dodge, and you and Whitehouse both have it down. I am shocked. If this was your last post on yesterday's hearings (which I neither believe nor suggest), you save the best for last. Whitehouse tore through Gonzales. To me, it was the best stuff of the hearing; a new angle for most everyone, and handled masterfully by Whitehouse. Whitehouse is fit to be AG;AG is not.

[mateo]

Did you see this clip? It's Chuck Shumer after the hearings yesterday. It makes me wonder if the White House's rationale for asking Gonzales to resign might switch from saving face, which is impossible at this point, to covering their asses on seeing this move any further. The clip is here:

http://snuffmonkey.com/gonzales

[enough]

Froomkin has a copy of Whitehouse's chart at
http://www.washingtonpost.com/wp-dyn/content/linkset/2005/04/11/LI2005041100879.html

The print is too small for me to read. I hope others can

[tekel]

Direct link to chart from Froomkin is here

http://img.slate.com/media/1/123125/123087/2156534/2163600/wh_charts.gif

[Mimikatz]

Schumer's point in the interview linked here is clear--if no one at DOJ will own up to putting the names on the list, then "the arrow points to the White House" and they really have to hear from Rove and Miers. This may also be why Goodling gets immunity, as she is the liaison to the WH.

[pseudonymous in nc]

And Schumer seems to have grasped that while Gonzo floated above all this, the dirty work was done by the loyal Bushies at DOJ and in the WH.

One question I wish I'd heard: which people did Gonzales consider had the authority to be part of the 'consensus' process? Name names.

And this one: 'Is it possible that White House officials from Karl Rove's office and the White House counsel's office had direct input in adding names to the list?' And follow-up: 'But you can't say for sure that they didn't, can you? You've admitted that you handed off the process to Kyle Sampson.'

[sponson]

Marcy, Gonzales just gave Tim Griffin a high profile corruption case to brush up his image:

Posted here at my blog.

[emptywheel]

sponson

Interesting...

[!]

So I just undertook the pointless exercise of emailing John Cornyn to suggest that Gonzales is unfit for office. Cornyn's webpage has an anti-spam feature where you pick a word from a dropbox before the message is accepted. The words on the dropbox were:

ROTATIONS
BUSHWACKS
DELETING
TANGS
LENINISTS
UNDRESSING
ORDERLY
BEAT

And the word I was prompted to select was "fifth from the top". Sweet!

[tomj]

I think it just dawned on me again that Gonzo is right! There are no laws being broken here. Laws are those things passed by Congress, signed by the President which appear to be constitutional. No, the president is doing things which are so fundamentally wrong, nobody ever thought they needed a law. These are things so bad, that the founding fathers probably assumed there would be immediate consensus in Congress to remove the offender quickly before further damage could be done to our great republic. They probably never considered the potential for so many of their own would form an enabling environment for the destruction of our constitutional framework. They probably thought that those being elected would separate themselves from their personal, family and business interests in service to the constitution. Their only sworn oath. The only oath required for those entering public service. Yes we have an entire executive philosophy based upon the male lead in _My Cousin Vinny_. "You's was serious about that?"

[tekel]

Hey ew, I just put up a longish post highlighting the Sheldon Whitehouse charts from Thursday. Please feel free to use anything you like.

cheers...

[moistened bink]

Again, I am so proud to be a native Rhode Islander! I was skeptical of Sheldon, I did indeed vote for Lincoln Chaffee after much internal deliberation. I loved his father John Chaffee and Linc grew on me, especially when he took on John Bolton and derailed him.

But, good on 'ya Sheldon! Keep it up.