Former Dep. Atty General James Comey will be appearing tomorrow to testify before Congress. He will be there to discuss the purge of the USAs, but his appearance will provoke memories of another Bush/Gonzales scandal, one where Dep AG Comey is reported to have figured prominently. That scandal, which eventually resulted in the direct intervention of the President of the United States to shut down an ethics investigation, remains largely unexamined.
With the issues relating to the USA purge on the table, it might seem that any questions relating to an ethics review, especially one in which the investigators had specifically said they would not be reviewing the legality of the program, might be a paltry affair. But I can't help speculating and wondering, "what if?"
"What if" the story of the OPR investigation, as reported so far, leaves out or misinterprets some very significant facts? "What if" the President directly intervened to shut down the OPR investigation because it was likely to reveal something that would cause most lawyers to lose their license? What if" one or two questions to Mr. Comey might raise the possibiity that Gonazles should be facing a judge instead of a Congressional committee?
Most people refer to the the story put forth in Newsweek's
Palace Revolt as the central point in OPR's thwarted investigation.
While the Newsweek story has never quite rung true to me, elements of that story, combined with other, older stories and a much more recent report by Murray Waas, do combine to come tantalizingly close to supporting an alternative story - and one in which it becomes very understandable why the OPR investigation of Gonzales had to be shut down.
Let's see if you agree.
I. Supposed History of the Wiretap Confrontation involving Gonzales.
During Ashcroft's tenure as Atty Gen, and with Gonzales as White House Counsel, the White House and NSA embarked on a warrantless wiretap program. There was a very good diary on Monday that dealt with aspects of program involving purported disputes between NSA lawyers and Vice President Cheney's office. Cheney begat the illegal NSA program Although that diary approaches a different issue, it gives a good background.
Once the story of the program came to light - years after the program had commenced, there was pushback by some of the players to try to salvage their reputations. The smintheus diary addresses that in the context of NSA lawyers trying to "look better" in the face of their involvement in the program. The Dept of Justice (DOJ) looked nothing short of criminal for its involvement, and as with the NSA lawyers, there were reputations seeking salvage.
In this setting, we get the Newsweek Palace Revolt story. The Newsweek authors tell the tale pretty much like this:
**Ashcroft is in the hospital. The intrepid Deputy Atty Gen James Comey is running the shop as acting Atty Gen when the illegal warrantless wiretap program, which we have been told must be renewed every 45 days(although no one knows if this is true or when it started), comes up for renewal.
**Comey falters before putting pen to page. Suddenly he is stricken by the thought that the program might be "outside the law." Jack Goldsmith, the head of DOJ's Office of Legal Counsel (OLC)(a mini-Sup. Ct for DOJ), is similarly striken at the same time, and an ex-OLC lawyer, Patrick Philbin, who was serving as national-security aide to Comey, is also striken. All in 2004, which is only coincidentally a Presidential election year. With Ashcroft in the hospital, the Revolting Goodfellas refuse to sign off on the program until it is brought "within the law" and completely shut the program, (which they have all argued was saving live), down cold.
**This provokes Gonzales, as White House Counsel, and Andy Card, as White House Chief of Staff, to rush to the hospital and try to talk Ashcroft into overriding the Revolters and giving the President what he wants. With no outside stimuli other than the Revolters, Ashcroft, who as been board with the program for years now, does a complete 180 and also refuses to sign off on the program.
Per Newsweek: "Goldsmith and the others fought to bring government spying and interrogation methods within the law."
All of that is interesting, in no small part because at the time of the Newsweek article, neither government spying nor interrogation methods were anywhere near being "within the law." Or, to quote smintheus in the Cheney diary above, "The problem is that this falls afoul of both logic and the known facts."
Substitute the "Palace Revolters" for NSA lawyers and this passage from smintheus diary also rings true:
So the anonymous sources' claim that NSA lawyers saved the day by insisting upon abiding by the law is nonsense. The program is patently illegal. Any internal resistence within the NSA either failed, or concerned the extent to which they would break the law.
Indeed, at the end of the Newsweek article, the fairytale collapses on itself a bit to say:
A compromise was finally worked out. The NSA was not compelled to go to the secret FISA court to get warrants, but Justice imposed tougher legal standards before permitting eavesdropping on communications into the United States. It was a victory for the Justice lawyers...
II. The problem.
Now does any of that really make sense? That the unlikely cast of Philbin, Comey and Goldsmith[ok, unlikely for me at least, but that's a separate diary] do battle over Ashcroft's sick bed with Card and Gonzales, about a program they all AGREE can go on, unsupervised by the courts and WITHOUT WARRANT, and where their only dispute is over whether they need more "standards" for their illegal warrantless program? After years of having the "old" standards, they were suddenly willing to close the program they all supported, cold turkey, in the midst of terrorist investigations, because standards needed tweaking? And Ashcroft, after years of just going along, suddenly caves? All with no outside trigger?
III. The OPR Non-Investigation.
After the Revolution story, Democrats push for an investigation and it comes to light that the OPR expressed an interest in investigating, but that they would not be investigating the legality of the program, only the ethical conduct of the lawyers involved. "Ethics" is a bit of a term of art for lawyers and refers to their duties to follow the rules of professional conduct rather than to independent standards of moral behavior.
I confess to thinking, "big deal" when told and ethics investigation might be in the works - especially since the media seems to focus on it as being an investigation of the quality of the advice given. It seemed likely to be a situation where they would confirm whether or not the President was given the full spectrum of advice on the program and I honestly couldn't imagine any significant outcome. So you have to wonder, who cares if OPR investigates?
Except, it was clear that someone did care.
No sooner do we hear about the OPR investigation, than we hear it is being shut down. Not just shut down, but shut down by direct intervention of the President himself. That got my attention and I realized I was likely wrong about the OPR investigation. Smoke. Even so, the story died quickly.
Until just recently, when a reporter resurrected it with new information.
IV. Waas Article.
That reporter, Murray Waas pulished an article, Aborted DOJ Probe Probably Would Have Targeted Gonzales that zeroed in on Gonzales as the focus of the OPR investigation (not just a broad review of "the lawyers" involved) and unprecedented degree of Presidential intervention into the investigation.
...Gonzales learned that his own conduct would likely be a focus of the investigation ....
Bush personally intervened to sideline the Justice Department probe in April 2006 ...
While Waas seems to pretty much accept the Palace Revolt story:
Then-Attorney General John Ashcroft and then-Deputy Attorney General James B. Comey shared some of the same concerns as Goldsmith about the program's legality, according to interviews with current and former officials and to published accounts...
the Waas article provides information that seems to point to an alternative explanation for the events in that story.
In particular, Waas offers information on a player not mentioned in the Revolt story. James Baker. No, not "that" James Baker. This one is the counsel for DOJ's intelligence office and had served as the liason between DOJ and the FISA court. He features prominently in another story about the warrantless wiretap program, but one that had not, until the Waas article, been tied to the possible OPR investigation.
Waas explains that OPR considered Baker a crucial witness and Waas even has information on what OPR wanted to discuss with Baker:
The memo also said that the office had asked Baker to "submit to an interview concerning the NSA program and its relationship to the department's dealings with the [Foreign Intelligence Surveillance Act] court."
So here we have OPR, which is NOT going to be reviewing the legality of the wiretap program, nonetheless wanting to interview Baker (the DOJ liason with the FISA court) about the "relationship" of the NSA program and the DOJ's "dealings with" the FISA court. Waas also tells us that:
Baker, the counsel for Justice's intelligence office -- and the second official whom OPR investigators were eager to interview -- had warned the presiding judge of the FISA court that authorities improperly used information from the program to obtain surveillance warrants submitted to the court, Justice officials recalled in interviews.
WHOA. Now we leave the area of touchy feely fuzzy obligations to render objective advice to a client and similar legal duties, which the media seemed to have pushed as the focus of the OPR investigation, and end up with some very objective professional standards on the line. Did someone, "authorities" per the Waas piece, make "improper" submissions to a court? Because if a lawyer was involved with "improperly" using evidence to the court, or getting warrants by violating court orders or standards, then the consequences can be big.
If the Justice inquiry had been allowed to continue, Baker would almost certainly have been asked about any discussions he had with Gonzales and his top aides regarding these issues, according to officials close to the inquiry.
Another WHOA. Baker had discussions with Gonzales and his top aides about improper submissions to the FISA court? But at that time, Gonzales was White House Counsel, not Atty General. So why is the Counsel for DOJ's intelligence office discussing improper submissions to FISA with White House Counsel?
All of which leads me back to a story that received much less PR than the Palace Revolt piece. One that also features Baker and one that seemed to me, at the time, to be intertwined with some of the events described in the Palace Revolt piece.
V. The Ignored FISA Story
With little fanfare, a story had come out about the resistance by the FISA court to the illegal warrantless wiretap program. Secret Court's Judges Were Warned About NSA Spy DataThis story approached the dilema of the two (successive) heads of the FISA court, after they were briefed on the program.
Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions.
(emph added)
The judges tried to protect the integrity of the FISA court with restrictions. We don't have all the details, but they tried to set up firewalls to prevent the FISA court from becoming an accomplice to possible crimes of the Executive Branch. They seem to have required a special tagging system for FISA requests that also involved people being subjected to the illegal warrantless program and special handling of the tagged files.
Why did the Judges think the tagging approach would work? Well, the article details the significant trust the judges had in James Baker. The same James Baker that OPR sees as a key witness in the Gonzles investigation. Baker proved that he was trustworthy:
In 2004, Baker warned Kollar-Kotelly[FISA Judge] he had a problem with the tagging system. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know -- and could not alert the court -- if it was seeking FISA warrants for people already spied on, government officials said.
(emph added)
This is the same James Baker whose conversations with Gonzales and aides about such improper use of information in the FISA court was a hot topic for the OPR investigators.
So Baker tells the FISA cour the truth and with truth comes consequences. Oddly enough, those consequences seem to have been occuring at about the same time as the events unfolding in the Palace Revolt story, where senior DOJ officials were suddenly thinking about "tougher legal standards" for the program.
Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete -- or face possible perjury charges.
(emph added)
Wow, imagine that. The program gets suspended TWICE in 2004. Once for the Revolting crew, and once for the Judge? And Ashcroft comes under assault two different times, once from FISA and once from the Revolutionaries? Ya think?
Maybe not.
VI. What If.
This is speculation, but based on what we know, here's an alternative view of the events in 2004. A court order details how FISA applications are to be handled in light of the illegal warrantless program. Baker learns that order is being violated and reports to the court. A furious court demands better compliance and a system of "sign off" that will place DOJ senior officials under penalty of perjury if the firewalls continue to be violated.
The program is temporarily suspended, not so much because of a newfound concern for "tougher legal standards" but rather because of the Judge's demands. With Ashcroft in the hospital, no one at DOJ wants to sign off on a report to the court that they know to be false - especially with the judge angry at existing violations of her orders and with the perjury sabre being rattled loudly. So rather than altruism as the catalyst for the Revolt, a fear of personal accountability may have spawned the uprising.
According to both the Palace Revolt and the FISA Court articles, compromises were reached that allowed the program to proceed. Under the Revolt story, there are "stricter legal standards" implemented, which does not make much sense. Under the FISA story, there were stronger firewalls and more direct accountability by senior DOJ officials to prevent contamination of the court. Really, there is no particular reason, other than someone's effort to get good PR for the Goodfella Revolters, why the "tougher legal standards" were not simply better firewalls to keep the illegal warrantless evidence out of court.
So was the crisis precipitated, not by Goldsmith, Comey and Philbin, but rather by a tough FISA Judge and a tough and honest - and unmentioned in the Newsweek story - lawyer?
And if so - what was the nature of the conversations that took place between Gonzales and the other players in the piece? Was anyone pushed to commit perjury? To make misrepresentations to the court? To violate court orders? To use evidence in violation of court determinations of admissibility?
VII. Consequences Avoided
The alternative story would certainly put a different slant on the OPR investigation. While OPR investigations are private, in general there would be nothing to prohibit OPR from making a classified report to a security cleared court about violations of that court's orders and the identity of those involved in the violations.
Similarly, OPR can and does make private reports to bar associations about ethical violations of attorneys if the violations might subject the attorneys to sanctions by the bar associations. It is usually the bar associations that determine whether a lawyer will be suspended or disbarred and certain matters, like perjury, have pretty clear consequences.
Anyone who watched Sen. Whitehouse interrogate AG Gonzales as to why Gonzales chose OPR to investigate the USAs purge scandal, instead of pursuing other avenues, learned a bit about the jurisdiction of OPR investigations.
Typical misconduct allegations that OPR investigates include ... ; improper introduction of evidence; misrepresentations to the court and/or opposing counsel; improper opening and closing arguments; failure to diligently represent the interests of the government; failure to comply with court orders, including scheduling orders; and unauthorized disclosure of client information. ...
(emph. added)
Without making determinations about the underlying legality of the wiretap program, could OPR examine the professional conduct of DOJ lawyers and others with respect to violations of the FISA court's orders or misrepresentations made to the court or the improper introduction of evidence that the judge had ruled must be excluded? Yep.
Could those examinations and determinations of professional impropriety by White House Counsel have been devastating to Gonzales career in general, and much more specifically to his ability to be Attorney General of the United States?
What do you think?
Would they have opened the door to the question of whether or not Gonzales was acting on even higher orders and who, ultimately, might have been responsible?
This alternative explanation, makes the panic to shut down the OPR investigation easier to understand.
With exDAG Comey lined up to answer questions about his "nonpartisan" list of USAs to fire, maybe someone would also ask him a few other questions.
Like whether, without disclosing the classified details of any applicable programs, Comey is aware of instances where the AG, either in his capacity as AG or his former capacity as WHC, ever enaged in "...improper introduction of evidence; misrepresentations to the court" or "failure to comply with court orders?" Or whether Gonzales encouraged others within DOJ to do any of the foregoing?
Given Comey's history, I'm not wildly interested in his "non-partisan evaluation" of the USAs. But I'd really like to know why OPR was so interested in Gonzales' actions with regard to the wiretap confrontation. And why the President was so interested in making sure OPR could not get answers.