Dispatch September 2008

What Did Bush Tell Gonzales?

Sources say Alberto Gonzales now claims that President Bush personally directed him to John Ashcroft's hospital room in the infamous wiretap renewal incident
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In March 2004, White House Counsel Alberto Gonzales made a now-famous late-night visit to the hospital room of Attorney General John Ashcroft, seeking to get Ashcroft to sign a certification stating that the Bush administration’s warrantless wiretapping program was legal. According to people familiar with statements recently made by Gonzales to federal investigators, Gonzales is now saying that George Bush personally directed him to make that hospital visit.

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The hospital visit is already central to many contemporaneous historical accounts of the Bush presidency. At the time of the visit, Ashcroft had been in intensive care for six days, was heavily medicated, and was recovering from emergency surgery to remove his gall bladder. Deputy Attorney General James B. Comey has said that he believes that Gonzales and White House Chief of Staff Andrew Card, who accompanied Gonzales to Ashcroft’s hospital room, were trying to take advantage of Ashcroft’s grievously ill state—pressing him to sign the certification possibly without even comprehending what he was doing—and in the process authorize a government surveillance program which both Ashcroft and the Justice Department had concluded was of questionable legality.

Gonzales has also told Justice Department investigators that President Bush played a more central and active role than was previously known in devising a strategy to have Congress enable the continuation of the surveillance program when questions about its legality were raised by the Justice Department, as well as devising other ways to circumvent the Justice Department’s legal concerns about the program, according to people who have read Gonzales’s interviews with investigators. The White House declined to comment for this story. An attorney for Gonzales, George J. Terwilliger III, himself a former deputy attorney general, declined to comment as well.

Although this president is famously known for rarely becoming immersed in the details—even on the issues he cares the most about—Gonzales has painted a picture of Bush as being very much involved when it came to his administration’s surveillance program.

In describing Bush as having pressed him to engage in some of the more controversial actions regarding the warrantless surveillance program, Gonzales and his legal team are apparently attempting to lessen his own legal jeopardy. The Justice Department’s inspector general (IG) is investigating whether Gonzales lied to Congress when he was questioned under oath about the surveillance program. And the Justice Department’s Office of Professional Responsibility (OPR) is separately investigating whether Gonzales and other Justice Department attorneys acted within the law in authorizing and overseeing the surveillance program. Neither the IG nor OPR can bring criminal charges, but if, during the course of their own investigations, they believe they have uncovered evidence of a possible crime, they can seek to make a criminal referral to those who can.

In portraying President Bush as directly involved in making some of the more controversial decisions about his administration’s surveillance program, Gonzales may, intentionally or unintentionally, be drawing greater legal scrutiny to the actions of President Bush and other White House officials. And what began as investigations narrowly focused on Gonzales’s conduct could easily morph into broader investigations leading into the White House, and possibly leading to the appointment of a special prosecutor.

Dan Richman, a former federal prosecutor in Manhattan and professor at Columbia Law School, told me that Gonzales appears to be attempting to walk the thin line of taking himself out of harm’s way while at the same time protecting the president, a strategy that very well could work: “I think he is serving his own purposes and the White House’s purposes,” Richman says.

According to Richman, by invoking Bush’s name and authority, Gonzales and his legal team are making it more difficult for investigators to seek a criminal investigation of his actions, or for other investigators to later bring criminal charges against him: “The clearer it is that Gonzales did what he did at the behest of the president of the United States, the safer that he [Gonzales] is legally,” says Richman. At the same time, by saying that he is advising the president, Gonzales also makes it easier for those at the White House to claim executive privilege if they do indeed become embroiled in the probe.

Moreover, according to one senior Justice Department official, Gonzales, his legal team, and the White House also know that Justice’s IG and OPR are unlikely to press senior White House officials, let alone the president, to answer their questions.

But this legal strategy could also backfire.

One scenario feared by the White House is that the IG or OPR could send a public report to Congress concluding that Gonzales or some other official may have committed a crime. At a minimum, that would make the conduct of Gonzales, or of any other official deemed to be under suspicion, the subject of a criminal investigation.

If the report also raised unanswered questions about possible misconduct by other senior administration officials, or even the president, that could lead to the appointment of a special prosecutor. Some consider this unlikely; Attorney General Mike Mukasey has said that he is not an advocate of special prosecutors, and his critics in Congress have said that Mukasey tends to use his position for the political benefit of the White House. But in the hands of congressional Democrats, a public report accusing Gonzales and other administration officials of misconduct could make it difficult for Mukasey to resist their calls for the appointment of a special prosecutor.

Inside the White House, this is what is called the “nightmare scenario.” White House Counsel Fred Fielding, who served in the Nixon White House during Watergate and as a White House counsel during the Reagan administration, has told others in the White House that although he does not consider this a likelihood, it should not be ruled out, and Bush and his staff should be ready for such a contingency. In addition to the Justice Department’s IG and OPR investigations regarding the surveillance program, Gonzales is also under investigation by the IG as to whether he lied to Congress about the politicized firings of nine U.S. attorneys. Fielding has told White House colleagues that there is an outside possibility that a special prosecutor could be appointed to conduct a broader investigation.

In the meantime, however, it will be increasingly difficult for the president to claim he was detached from the major decisions regarding his surveillance program. One fiction that has been set aside is that the regrettable incident in Ashcroft’s hospital room was the work of overzealous or insensitive staff.

The narrative of a detached Bush delegating to his staff and to his vice president continues to be the predominant one. Gonzales and Vice President Cheney have been only too happy to serve as lightning rods for criticism of the administration, drawing fire away from many of President Bush’s most controversial decisions on national-security policy.

Washington Post reporter Barton Gellman’s recently published book on Cheney, Angler, once again implies that it was Cheney who was running the show. An excerpt published in The Washington Post about the president’s role in pressing for the surveillance program was headlined “Cheney Shielded Bush From Crisis.” The article was also summarized as follows on the newspaper’s Web site: “President was nowhere in the picture as Cheney fought to keep surveillance program on track.”

But seemingly contrary to the book’s broader conclusions was a story corroborating Gonzales’s account to investigators that Bush ordered him and Card to go visit Ashcroft in the hospital. Indeed, if Gellman is correct, Gonzales and Card would never have been admitted to Ashcroft’s hospital room without the president’s intercession in the first place. Gellman wrote:

The phone started ringing in the makeshift command center next to John Ashcroft’s hospital room. Janet Ashcroft had been at her husband’s side for six days. He was in intensive care, sedated, recovering from emergency surgery to remove his gallbladder. Mrs. Ashcroft’s orders were unequivocal: no calls, from anyone, for any reason. According to two people who saw the FBI’s handwritten logs, the White House operator—on behalf of Gonzales or Card, it was unclear which—asked to be connected to the attorney general. The hospital switchboard, following orders, declined.

That evening, the FBI logged a call from the president of the United States. No one had the nerve to refuse him. The phone rang at Ashcroft’s bedside. Bush told his ailing cabinet chief that Alberto Gonzales and Andy Card were on their way.

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