OK

There was an important part of the Gonzales hearing yesterday that was kind of confusing, so I wanted to unpack it here. It appears that Senator Whitehouse believes Gonzales tried to bury DOJ's internal investigation into the USA Purge.

Towards the end of the hearing, 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 its  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.

Originally posted to emptywheel on Fri Apr 20, 2007 at 10:38 AM PDT.

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