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?

The Justice Department is investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program, according to sources close to the investigation.

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President Bush reauthorized the surveillance program on March 11, 2004, one day after the hospitalized Attorney General John Ashcroft refused to sign a certification saying that the program was legal and could therefore continue.

In reauthorizing the surveillance program over the objections of his own Justice Department, President Bush later claimed to have relied on notes made by Gonzales about a meeting that had taken place the day before (March 10), in which Gonzales and Vice President Cheney had met with eight congressional leaders—also known as the “Gang of Eight”—who receive briefings about covert intelligence programs. According to Gonzales’s notes, the congressional leaders had said in the meeting that they wanted the surveillance program to continue despite the attorney general’s refusal to certify that it was legal.

But four of the congressional leaders present at the meeting say that’s not true; they never encouraged the White House to sidestep the objections of the attorney general and continue the program without his approval.

Investigators are skeptical of the notes because Gonzales did not write them until days after the meeting with the congressional leaders, and he wrote them after both Bush and Gonzales had together signed a reauthorization of the surveillance program.

Gonzales, who was White House counsel at the time he met with the congressional leaders, has told investigators working for the Justice Department’s Office of the Inspector General that President Bush personally directed him to write the notes so that he could “memorialize” what the legislators had told him, according to a report made public by the Inspector General’s Office on September 2 and sources close to the investigation.

It is unclear whether it was before the March 10 meeting that Bush directed Gonzales to write the notes, or after the meeting occurred. 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.

The timing of when Bush directed Gonzales to write the notes is important: investigators say the fact that they were written after both the meeting and the reauthorization of the program might indicate that they were written in order to provide an after-the-fact justification for the signing of the reauthorization—and that that timing might have given Gonzales a motive to lie in the notes.

Stanley Brand, a Washington attorney who specializes in representing executive branch officials under investigation, said in an interview: “Why would you want someone to take notes of a meeting days after the fact? If you wanted your notes to stand up, they are going to be more credible if you took them at the meeting itself or shortly after it occurred. Any reputable lawyer would want to write them as soon as possible.”

When the notes were written and when the president directed Gonzales to write them is “extraordinarily relevant and would allow a person to draw a reasonable inference … that something funny was going on.” An investigating body, or a jury, Brand said, might “infer there was a conspiracy afoot to obstruct with or without the participation of the president.”

Brand adds: “The presumption is that the president told Gonzales to write truthful notes … That is the benign interpretation of what happened. But when Gonzales is claiming to have had members of Congress telling him things they say they never said, a meticulous investigator would want to examine the president’s role as well.”

A senior career Justice Department official, not directly involved in the inspector general’s investigation, comments: “I think you would want to know whether the president was another person who Gonzales misled … or rather was someone who might have encouraged it. Because Bush was a direct beneficiary of Gonzales’s deception, you have to at least consider the possibility that he was a party to it.”

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.”