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.”