Dispatch September 2008

The Case of the Gonzales Notes

Did Alberto Gonzales create a set of fictitious notes to justify the reauthorization of Bush's warrantless eavesdropping program?

Regarding the question of timing, the report says:

Gonzales stated that he drafted notes about the meeting in a spiral notebook in his White House Counsel’s Office within a few days of the meeting, probably on the weekend immediately following the meeting. Gonzales stated that he wrote the notes in a single sitting except for one line, which he told us he wrote within the next day.

According to the report, Gonzales says he relied upon these notes in preparing for congressional testimony about the surveillance program. Steven Bradbury, another senior Justice Department official, backs this up. The report says, “Gonzales produced the notes to Bradbury and other Department officials” so they could be used help “prepare Gonzales for the Senate Judiciary Committee on July 24, 2007.”

When he indeed testified before the Senate Judiciary Committee on July 24, 2007, about the March 10 meeting, Gonzales said that he had told the congressional leaders “in the most forceful way that I could [about] … the disagreement that existed.” Gonzales said that in response to that, there had been a “consensus in the room” from the legislators, “who said, ‘Despite the recommendation of the deputy attorney general, go forward with very important intelligence activities.’ ’”

This assertion that there had been “a consensus” is currently under investigation by the Justice Department’s inspector general as possible perjury or as a false statement under oath. This previously unreported information—that the inspector general is probing whether Gonzales created fictitious notes to facilitate the reauthorization of the surveillance program—arose during the broader investigation as to whether Gonzales lied to Congress, sources close to the investigation said.

If the Justice Department’s inspector general concludes that Gonzales did mislead Congress in saying that the “Gang of Eight” wanted the surveillance program to continue irrespective of the Justice Department’s opposition, that would mean that he also misled his own administration’s attorney general: John Ashcroft.

During the same July 24, 2007, testimony to the Senate Judiciary Committee, Gonzales testified that he and Card raced to Ashcroft’s hospital room (where they tried to persuade Ashcroft to sign a certification saying that the surveillance program was legal) because, they said, they wanted to tell Ashcroft that Congress backed an extension of the surveillance program: “We felt it important that the attorney general knew about the views and the recommendations of the congressional leadership."

Unsuccessful in persuading Ashcroft to sign the legal certification, Bush and Gonzales reauthorized the surveillance program themselves the following day. Previous certifications of reauthorizations of the surveillance program had been signed by both the president and attorney general. In this instance, however, the signature line for the attorney general was electronically deleted and replaced by one for the White House counsel—who at the time was Gonzales.

The following day, President Bush learned that he faced the resignations of his attorney general, deputy attorney general, FBI director, and a number of other senior government officials if the surveillance program went forward without changes made to it recommended by the Justice Department to bring it into compliance with the law. Bush then informed the Justice Department that he would accept their recommendations to change the surveillance program so that the Justice Department could certify that the program was legal.

The inspector general’s investigation as to whether Gonzales gave false or misleading testimony to Congress about the program is still ongoing. In the course of it, one important question that has arisen is whether President Bush himself should be questioned as part of the process.

Outside legal experts and Justice Department officials not working directly on the inspector general’s investigation of Gonzales told me that to conduct a credible and thorough investigation, the Justice Department almost certainly should attempt to interview President Bush himself.

Dan Richman, a former federal prosecutor for the Southern District of New York, who is currently a law professor at Columbia University, says that perjury and false-statement cases are difficult for prosecutors to make: “In many instances, you almost have to literally take the jury inside a defendant's head to demonstrate their intent.”

If the question is whether Gonzales perjured himself, Richman says, it would be important that investigators interview President Bush about what he might know about the notes that he directed Gonzales to make of his meeting with the “Gang of Eight”: “By and large, the Inspector General’s Office should reasonably take pains to avoid interviewing the president,” he said, “but sometimes it is necessary.” In this instance, the “president clearly has information relevant to the investigation.”

Stephen Gillers, a professor at New York University’s School of Law, a respected expert on legal ethics and investigations of presidents, agrees: “In this case, the president’s testimony would be highly relevant and sought-after,” says Gillers. “He is the one person who knows most, if not all, of the story. And you would want to immediately go to that person.”

Solomon L. Wisenberg, a former federal prosecutor and a deputy independent counsel in the Whitewater and Clinton-Lewinsky matters, is even more emphatic in arguing that investigators must attempt to interview the president—not only so that they can assess whatever information they have regarding Gonzales, but also so they might be able to rule out that President Bush himself did anything wrong:

“Any thorough prosecutor,” he says, “is just going to want to talk to everyone involved.”

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Murray Waas is a writer in Washington, D.C.

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