New piece out on Talking Points Memo:
At least nine Bush administration officials refused to cooperate with various Justice Department investigations during the final days of the Bush presidency, according to public records and interviews with federal law enforcement officials and many of the officials and their attorneys. In addition, two U.S. senators, a congresswoman, and the chief of staff to one of them, also refused to cooperate with the same investigations.
In large part because of that noncooperation, Justice Department officials sought criminal prosecutors in at least two cases so far to take over their investigations so that they can compel the testimony of many of those officials to testify through the use of a federal grand jury.
With the stakes now escalating for both sides — the possibility of grand jury subpoenas for recalcitrant witnesses and the specter of senior government officials invoking their Fifth Amendment right to self-incrimination — it remains unclear whether and how many of them will continue to defy investigators.
In one instance, an attorney for former Bush White House chief political strategist Karl Rove recently told TPMmuckraker that even though Rove had refused to cooperate with an earlier Justice Department inquiry into the firings by the Bush administration of nine U.S. attorneys, he would now fully cooperate with a federal grand jury that has been empanelled to hear evidence in the case. But most of the other former senior White House officials, as well as members of Congress and their staffs, declined to say for this article whether they have or will cooperate with the various federal criminal investigations.
Previously, two Justice Department watchdog offices, the Inspector General and Office of Professional Responsibility conducted investigations of the firings of the U.S. attorneys and the politicization by the Bush administration of the Justice Department’s Civil Rights Division. But those two offices do not have the power to compel the testimony of witnesses outside the department itself or to initiate criminal prosecutions. The Inspector General and OPR successfully sought the naming of a criminal prosecutor to take over their probes.
In a report that the Inspector General and OPR made public last September detailing the findings of their investigation of the prosecutor firings, they asserted that their investigation was severely “hampered… because key witnesses declined to cooperate with our investigation.”
In regard to the investigation of the politicization of the Civil Rights Division, investigators sought a criminal investigation in part because four Bush administration appointees refused to cooperate with their initial probe. Two other investigations by the Inspector General and OPR of the Bush administration’s warrantless eavesdropping program are also currently underway. It is unclear in those instances whether a criminal prosecutor might eventually take over those investigations as well.
In the case of the firings of the U.S. attorneys, Nora Dannehy, the acting U.S. Attorney for Connecticut, who took over the investigation from the Inspector General and OPR, recently empanelled a federal grand jury in Washington to hear evidence in the matter.
As TPMmuckraker recently disclosed, the federal grand jury probing the firings of nine U.S. attorneys is currently zeroing in on the role played by recently retired Sen. Pete Domenici (R-NM) and former senior Bush White House officials in the firing of David Iglesias, a former U.S. attorney from New Mexico, according to legal sources familiar with the inquiry.
Last week, the Associated Press confirmed that story, reporting that the federal grand jury had subpoenaed records from Domenici and that Dannehy is also about to interview former Rove aide Scott Jennings, whose lawyer said he is cooperating to the “best of his ability.” Domenici’s attorney, K. Lee Blalock, after originally refusing to comment, and then suggesting to the New Mexico media that the TPMmuckraker report was incorrect, confirmed that the records of his client had in fact been subpoenaed. He also told the Santa Fe New Mexican earlier this month: “The investigation exists, but it is not focused on Senator Domenici to the exclusion of all others.”
But despite the fact that Domenici has already been severely criticized by two internal Justice Department watchdog agencies for refusing to answer questions from the Inspector General and OPR, Blalack is refusing to say whether he will cooperate with prosecutors conducting the current federal grand jury probe. The subpoena of Domenici’s records suggests that Domenici may not have voluntarily wanted to turn them over to authorities. Blalack declined to comment regarding this.
Besides the members of Congress, Justice’s Inspector General and OPR said that their investigation was severely hampered because of the refusal of numerous Bush White House officials involved in the firings to cooperate with their investigation.
Among those named in the report who refused to cooperate with investigators, the report said, were Former White House political adviser Karl Rove, former White House Counsel Harriet Miers, Deputy White House Counsel William Kelley, and Associate White House Counsel Richard D. Klingler.
So will the four former Bush White House officials now cooperate with Dannehy or testify before the federal grand jury if subpoenaed?
Back to a favorite subject of this blog:
Another investigation by the Justice Department’s Inspector General has focused on misconduct by J. Robert Flores, the Bush administration’s former administrator of the Justice Department’s Office of Juvenile Justice and Delinquency Prevention (OJJDP). Although little known outside the Justice Department, the OJJDP doles out more than a quarter of a billion in federal grants each year to decrease the number of juveniles in dangerous facilities and to prevent juvenile delinquency. Flores came under investigation by the Inspector General for allegedly setting aside federal laws and government regulations to award federal grants to political allies of the Bush White House and for also allegedly using federal travel funds to play golf.
During that investigation, Flores’ then-chief of staff, Michele DeKonty, took the Fifth Amendment rather than answer questions from Congress about the awarding of federal grants for political reasons, and similarly refused to be interviewed by the Justice Department’s Inspector General — leading to her immediate firing by then-Attorney General Michael Muksasey.
The Inspector General’s probe has reportedly since transformed into a criminal investigation. DeKonty’s attorney, David H. Laufman, declined to comment for this article as to whether his client has since cooperated with the criminal inquiry.
In another investigation in which Justice’s Inspector General and OPR faced uncooperative witnesses — regarding the Bush administration’s politicization of the Justice Department’s Civil Rights Division — they also sought a criminal probe to compel testimony of officials and also to determine if there was any evidence of any crimes committed.
Four officials in that probe refused to cooperate with investigators as well– at least until a criminal prosecutor took over the probe and empaneled a federal grand jury.
Update: Since I originally posted this story on TPM Muckraker, I learned that a tenth former Bush administration appointee at the Department of Justice refused to cooperate with a Justice Department inquiry of their conduct: Monica Goodling, the former counselor to Attorney General Alberto Gonzales, refused to be interviewed by both the Justice Department’s Inspector General and Office of Professional Responsibility during their joint inquiry into the firings by the Bush administration of nine U.S. attorneys. Goodling’s refusal to cooperate with the two Justice Department watchdog agencies was mentioned in their public report on the firings– a reference I missed when I wrote the TPM story.
Murray Waas, “A U.S. Attorney’s Story,” the Atlantic, April 20, 2009.
Murray Waas, “The Ninth Man Out: A Fired U.S. Attorney Tells His Story,” Huffington Post, June 4, 2007.
Murray Waas, “Administration Withheld Emails About Rove,” National Journal, May 10, 2007.]]>
The investigation was conducted jointly by the Justice Department’s Inspector General (IG) and the Department’s Office of Professional Responsibility (OPR.) Both of those internal watchdogs have no potential prosecutorial power, but can make recommendations that career prosecutors take up their work after they finish their final report. It is unclear whether Attorney General Michael Mukasey will do so.
Despite the fact that its efforts were stymied in part by non-cooperation by witnesses, the report will say- not much of a surprise-that several of the firings were due to the politicization of the Justice Department by Bush administration appointees and that the White House played a role in some of them. Investigators did attempt to do as thorough job as possible in investigating the White House’s role in the firings and were assisted by being able to review some confidential White House emails that the White House had been withholding from Congress.
The report might also touch on efforts by senior Justice Department officials to intimidate several of the fired U.S. attorneys from talking to the press or testifying to Congress about their firings, according to five people interviewed by investigators– including three former U.S. attorneys. (Only one former U.S. attorney, Bud Cummins of Little Rock, would say this for the record. And I should aslo qualify what I just wrote regarding the intimidation issue that I am basing what I say in this one instance based on witnesses to the investigation, rather than to anyone who has read the report.)
The lack of cooperation by some former Bush administration officials with investigators probing the firings of nine U.S. attorneys is not the first time that former administration officials have thwarted investigators probing the politicization of the Justice Department by refusing to answer their questions.
As I first reported on the Huffington Post in August, several former political appointees of the Justice Department’s refused to answer questions posed to them by the Department’s Inspector General about the politicization of the Civil Rights Division.
As a result, a federal grand jury subpoenaed several of the former senior Justice Department attorneys to compel them to testify.
The grand jury had been investigating allegations that a former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman, gave false or misleading testimony on a variety of topics to the Senate Judiciary Committee.
Sources close to the investigation identified two former Justice Department attorneys, Hans von Spakovsky, who as a former counsel to the Assistant Attorney General for Civil Rights was a top aide to Schlozman, and Jason Torchinsky, who was also a Counsel to the Assistant Attorney General for Civil Rights. Torchinsky was subpoenaed only as a witness in the case.
The non-cooperation by some Bush administration officials in the broader investigation into the firings of the U.S. attorneys might have thwarted some efforts by investigators to determine the entire truth about the firings. But because of that non-cooperation, according to attorneys closely following the matter, Attorney General Michael Mukasey is much more likely to allow career federal prosecutors to continue on with the work begun with the Inspector General.
Update: What to look for tomorrow: Apparently, the Inspector General and OPR want a prosecutor with subpoena authority to continue their investigation along. That is for two reasons: The Inspector General and OPR do not have prosecutorial authority. And they have been unable to compel testimony from witnesses outside the Justice Department.
This story posted online today by the Washington Post asserts that Mukasey is likely to name a career prosecutor to continue on with the investigation. However, the story appears to be a preemptive move by senior political appointees in the Department to close down discussion of appointing a special prosecutor instead.
If the report goes into a lot of detail about involvement by White House officials in the firings– or more importantly says that there are a number of important unresolved issues about the role of White House officials or politically connected officials with ties to the White House in the firings– then the case for naming a special prosecutor would be more compelling. This leak to the Post tonight appears to be an attempt to close down that debate before the issue before anyone has even read a single page of the report.
Second update: The NYT has also since posted online a story about the forthcoming report. But unlike the Post, they do not entirely take the spin that all will be well if a career prosecutor takes over the matter of continuing on with the probe instead of a special prosecutor being named. In particular, this excerpt from the Times story is especially pertinent :
One central question is the role officials at the White House, including Mr. Rove and Ms. Miers, played in the firings. But Paul K. Charlton, who was fired as United States attorney in Arizona after clashing with supervisors in Washington over a number of policies and investigations, said he was concerned that the inspector general’s limited jurisdiction and the White House’s refusal to turn over key records might have stymied the investigation.
The inspector general and the Office of Professional Responsibility, which conducted a joint investigation, have kept their findings under tight guard before the public release, declining to discuss any details with central players in the investigation or their lawyers. “It’s been a lockdown,” one defense lawyer said.
To look for tomorrow as the day progresses: What Rep. John Conyers (D-Mi.), the chairman of the House Judiciary Committee, and Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, have to say about Mukasey most likely not naming a special prosecutor.]]>
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.
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. By Murray Waas
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.”…
To read the whole thing, click here. More later…]]>