Did Alberto Gonzales Commit Perjury?:
I find myself more or less in agreement with Ruth Marcus, at least based on what we know so far. As I've said before, more than once, I think Gonzales should resign as AG. But based on the public record, the allegations that he committed perjury seem pretty weak to me.
Obviously we don't yet know all the relevant facts, but I think the case against Gonzales is stronger than Marcus thinks. Here's my post.
Damned hard to prove, but perjury nonetheless.
At the moment I am far more concerned with getting some modicum of a functioning DoJ back. Morale problems aside, half the damn department seems empty right now and Gonzales is such a millstone around its neck that they can't even get people to appoint to the positions. This isn't partisan, it's just a fundamental issue of having a justice system and there's no excuse for it.
The elements of that crime, which I believe are found in 18 USC 1505 and 1515, are not as strict as those for perjury. Just "making a false or misleading statement," or "withholding ... information" is criminalized there.
Concentraing on the elements of perjury, Ruth Marcus is persuaded that Gonzales successfully dissembled without telling a literal, actionable lie. I, too, used to think he could get away with his closely parsed testimony, but now I am not so sure even of that.
Ultimately, the veracity of his statements turns on the definition of what made up the "program" Comey, Ashcroft and others disagreed with in March 2004. Gonzales tried very hard to confine that to a novel term of art, the "Terrorist Surveillance Program," that was not invented until January 2006. That, he said in parts of his testimony, was the "program" the President had "confirmed."
Anonymous Liberal's analysis, and subsequent follow-ups, demonstrate that Gonzales may not have tap-danced so smartly after all, especially when his words are juxtaposed with Bush's description of the "program" in his Dec. 7, 2005, radio address. Then, Bush confirmed that he had authorized a surveillance program beginning shortly after 9/11 and reauthorized it in 45-day intervals since.
The "program" in 2004 was whatever was contained within the four corners of those reauthorizations at the time. There was no such thing as a "Terrorist Surveillance Program" then. If Comey and company disagreed with the legal foundation for any part of the actual program -- not just the post-hoc invention of the "TSP" -- then I think Gonzales is in trouble.
Congress can impeach Gonzales. In fact:
Well, that's easy to correct -- just make stronger allegations.
Seriously, setting aside whether you think Gonzales committed actionable perjury, would you agree that it's clear (on a preponderance of evidence standard, say) that he set out to mislead congress?
Take my corner of the world, the electronic privacy statutes. Some people think there is one statutory privacy law, ECPA. Some people think ECPA is really three laws, T3, the SCA, and the Pen/trap statute. Some people think that there are two, first T3 and then ECPA (the 86 amendments). Some would say it's three, t3, ECPA, and then USAPA. So is there one statute, two, or three? Whatare they? I have no idea: it depends entirely on arbitrary groupings, and I don't know of any "official" grouping.
I'm unaware of any controversy regarding whether the Attorney General is a civil officer for the purposes of impeachment - What line of argument would one make to say that he wasn't? Yes, there's precedent (or rather lack thereof) - only one cabinet member has ever been impeached - but other than the fact that it's rarely been used why would the AG not be a "civil officer"?
There is some disagreement over whether members of Congress are "civil officers", but that's not germane here.
As for the perjury charge, impeaching a cabinet member requires that there be an allegation of an actual crime. Perjury might be the peg to hang him on, or perhaps the more easily proven statutes cited by Just an Observer. You are correct that Gonzales has little to fear from a criminal prosecution, but we're not talking criminal prosecution in a court of law (a conviction under which could be pardoned ) but trial by the Senate who's verdict is not subject to review by the president. Of course, getting 67 Senators to vote for conviction would be hard, so don't hold your breath.
But, Orin, I take JaO's point to be that we're not just dealing with abstract categorization here. As a result of Comey and Goldsmith's legal objections, the program itself (or at least parts of it) were actually halted for a time. If the activities the president confirmed in 2005--what Gonzales calls the TSP--were among the activities that were halted briefly in 2004 when Comey refused to sign off on them, then I don't see how Gonzales testimony can be considered truthful, even in a highly technical sense.
I expect that he'll cite executive privilege and refuse to show up for the trial. Followed by a full-court press on 33 GOP Senators. They've dug in their heels this far, what makes you think they'll give up that easily?
My point is that there was a "particular program" defined by the reauthorization document Comey had in front of him in March 2004, according to his own testimony, and it was the legal justification for that program he disagreed with.
Ha. He'll sit through it, and when only a majority of Senators vote to remove him from office, the White House will hail it as a victory and condemn the partisan Democrats.
The "program that the president has confirmed" was also described by Mr. Bush as having existed since shortly after 9/11 and having been repeatedly reauthorized during that time. There is not a separate program that began only after the hospital drama. Additionally, if there are not separate reauthorization documents for separate programs before the hospital drama, then there was only one program before then. In that case, the program that the president confirmed included the elements over which there was a heated dispute, and Gonzales did not testify truthfully when he claimed that there was no dispute over the program that the president confirmed. That the "other intelligence activities" are not any longer part of the program does not mean that they were never part of the program.
If so, then impeach away.
I doubt that it would work, however. Bush's famous insistence on loyalty only works in one direction.
Ultimately, it would take more dots to prove a charge. Those dots could come in more thorough examination of Gonzales, Comey, Ashcroft, Goldsmith, Mueller, and others before a grand jury or other forum, and in the documentary evidence of the reauthorizations and legal memos supporting them or not. Many of those dots likely would be disputed as a matter of privilege.
The question today is, is there enough on the record to commence an official investigation. (Some favor a special counsel, others an impeachment proceeding.) I think the record so far does support taking it to the next step. Gonzales' finely parsed technical defense does not persuade me that there is nothing to investigate.
I think the post AL linked in the very first response sets it out very clearly. I found it very persuasive.
Why?
I assume the burden is a "high crime or misdemeanor." While there have been previous (lengthy) debates on volokh about the subject, it has been my understanding that hcORm is a term of art, and that not all crimes (take speeding, for instance) would be a hcORm, and not all hcORm are crimes.
Not saying I buy Ford's articulation that it is whatever Congress says it is, but still...
but I expect that if Gonzales is impeached, he will resign rather than go through the Senate trial.
Ha. He'll sit through it, and when only a majority of Senators vote to remove him from office, the White House will hail it as a victory and condemn the partisan Democrats.
Ha ha!!! Maybe Clinton can advise him on what to do!
Well, I didn't. So I guess we're going to have to agree to disagee.
First, see the Ruth Marcus article linked to in my post, as well as the arguments I made at 11:52.
Second, AL's claim is by its terms just based on speculation. He makes a lot of assumptions, and then says that based on those assumptions, "there are a whole lot of facts which, if true, would sink Gonzales' defense. If I were a betting man, I'd bet that Gonzales' defense would not withstand any real scrutiny." But what's the evidence that those facts exist? None as far as I can tell.
Finally, the claim about the Bush radio address seems very weak: I doubt people with classified clearances write those speeches.
I don't think the test is whether we are persuaded that there is nothing to investigate. It's always possible to find something if you look hard enough; you can never know that nothing is there unless you look really carefully. But I think it sets a really bad example to appoint a special prosecutor to investigate an AG without a pretty significant sense that a crime occurred. Right now I just don't see it.
>>member requires that there be an allegation of an actual crime.
> Why?
> I assume the burden is a "high crime or misdemeanor.
You got it. Contrast that with the standard for impeaching judges, which is anything that falls short of "good behavior."
I don't have the stomach at the moment to get into a discussion of what constitutes HCoM, but the articles of impeachment has to cite something. "We don't like the way you're doing your job." is not sufficient.
How much evidence do you really need that this man is a serial liar (maybe dissembler is a better, less provocative word—-but then again, isn't dissembling just another word for not telling the whole truth? I mean when you take that oath, you take the oath to tell the whole truth.)? I know that is a serious charge to make, but every time he testifies, his main goal is not to reveal to Congress the truth, but to try and cast things in a favorable light to his boss. This is not justice. This is not the qualities of the head of Justice here in America. He is most definitely obstructing justice.
The practice of law is supposed to be above politics. We ought to re-assert that. If, as seems likely, Gonzales has violated the Texas ethics rules, he ought to be disciplined. It's not -- or shouldn't be -- a political matter or a matter for Congress.
Call me a hopeless romantic, but I still believe that being a lawyer means being held to a higher standard. Whether Gonzales' actions are acceptable for "civilians" matters not a whit to me. I think his conduct is both an embarrasment and manifestly the basis for a colorable ethics complaint to the Texas state bar. Someone ought to formally report him.
I hardly think a radio address by the President constitutes nothing more than an admission by the speechwriting flunky.
I suggest that we do have facial evidence that there is something to investigate. President Bush on Dec. 17, 2005, announced a certain "program" (Whether his speechwriters lacked security clearance is of no consequence; he read the speech.) Comey testified that he disagreed with the legal basis for a "particular program," which was the subject of the meeting in Ashcroft's hospital room. Mueller testified that the same disagreement was over "an NSA program that has been much discussed." Later, Comey testified, he and many other senior DOJ lawyers, along with Mueller, were ready to resign over the dispute.
Yet Gonzales told Congress that "there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations. ..."
It seems on the facial record that Gonzales was making a misleading statement or withholding information, at a minimum, because those "other matters" and the TSP were actually part of the same "program" all along. It may be that an investigation could harmonize all those statements into harmlessness, but there is enough to convene an investigation.
If you were running DOJ, and this record were presented to you in a complaint from four senators -- three of whom have been briefed on the secret program and assert that Gonzales' public statements were false or misleading -- would you drop the matter without further inquiry?
Orin, respectfully, how is your position any less speculative than mine? Marcus concludes that she doesn't think Gonzales "actually lied." You concur. But neither of your conclusions is based on anything other than some vague anonymously-sourced statements fed to the media to defend Gonzales. I fully concede that not all the relevant facts are known right now. But the point I was trying to make is that, given what we know, it appears more likely than not that Gonzales testimony was false.
If you disagree with me, I'd love hear your argument. But I haven't seen an argument. What do you think the legal disagreement was about in 2004? How can it truthfully be said that that disagreement was unrelated to program the president disclosed? These are the relevant questions.
That's probably true most of the time, Orin. But this particular address was hugely important. It was the first time the president had disclosed the government's most secret program (according to Bush). And to this day it's the most the fulsome description the president has given of the program. It's inconceivable to me that the language the president used in that address was not cleared by lawyers briefed on the program. That language was chosen very carefully.
And throughout his testimony, Gonzales referred to "the program the president confirmed," which is clearly a reference to the president's statement confirming this program.
In an op-ed entitled "Short of Perjury" (Washington Post, 7/31/07) Ruth Marcus argues that Alberto Gonzales, while clearly misleading Congress about the NSA surveillance program, didn't actually lie, but was "appropriately vague".
I suggest that the author is "Short of Sense." There's no doubt at all that Gonzales was deliberately misleading Congress on a very important issue. If the government "went off the reservation" we need to know about it, and have some confidence that they're back "on the reservation" and not likely to do a repeat performance. The only way we're going to achieve those objectives is through Congressional hearings.
Marcus quoted a recent New York Times article (which was almost certainly planted by - anonymous, naturally - Gonzales supporters) as confirming that the internal controversy pertained to 'data-mining' rather than to actual wiretapping. The problem is, even if you believe the article, data-mining activities per se are not likely illegal and thus are highly unlikely to be disturbing to, of all people, Bush Administration officials, let alone forming the basis of an alleged near-revolt.
What would resolve the matter would be to start impeachment proceedings against Gonzales. To be impeachable, Gonzales' behavior need not be technically classified as criminal perjury. Then, if that investigation determines that actual perjury was likely to have occurred, charge him with that crime as well (after he's been - hopefully, but not necessarily - removed from his position as the premier law enforcement official in the country).
Straw man alert. I hope that 100% of people support listening in on such calls. The question is, and has always been, whether it's okay to listen in without warrants, as required by law.
I think it's true that the Democrats have been somewhat cautious about this, afraid they will be demogogued in just this way, but it's also true that there is no point in changing the law when the President claims the authority to disregard it. What should they pass? A resolution reminding the President that FISA forbids warrantless surveillance? And even if they wanted to pass some sort of substantive law, the president would certainly veto it.
Pardon me, but how is this any more relevant than your prior comment about how different people within the government had lots of different ways of classifying the different programs? How anyone else in the government or how any speechwriter categorized various intelligence activities is not at issue. What is at issue is "the program the President has confirmed." Mr. Bush confirmed the existence of the program in his radio address the day after the NYT story broke. He described it as having been authorized "[i]n the weeks following the terrorist attacks on our nation," and as having been reauthorized "more than 30 times since the September the 11th attacks" at intervals of "approximately every 45 days." That is the program to which Attorney General Gonzales carefully referred.
Clearly the President confirmed the existence of at least one NSA program. Do you think he confirmed more than one? I do not see any evidence to support such a claim.
By the President's own description, the one program that he confirmed was in existence before and continued in existence after the 2004 dispute. There is no separate program beginning in 2004.
What the President authorized and then reauthorized every 45 days is the program. No one in the know, including the President and the Attorney General, has ever said that the disputed and subsequently terminated NSA intelligence activities were authorized and reauthorized separately as a separate program from the ongoing activities. Indeed, every reference and action except for those of the Attorney General seems to be entirely consistent with the complete set of both disputed/terminated and ongoing NSA intelligence activities having comprised a single program with a single train of authorization and reauthorization documents. Yes, examination of the authorization documents and testimony of those who were informed about the intelligence activities before 2004 will be needed to definitively ascertain whether there was more than one or only one program, but the claim that there was only one program seems entirely persuasive enough at this point to motivate those further investigations.
If there was but one program, then the Attorney General's testimony that there was no dispute over "the program the President has confirmed" was simply not truthful. If the Attorney General's intent had not been to mislead the Congress, then he would have accurately stated something to the effect of, "The elements of the program that the President has confirmed have not been disputed." Of course, that answer would have immediately resulted in follow-up questions ("Were there elements that the President did not disclose, and were there disputes over those undisclosed elements?") that the Attorney General wanted to mislead the Senators away from, leaving the intentionally false impression that the entire program was free from dispute.
As a matter of fact, the House-passed version of the intelligence authorization bill contains binding language reiterating that FISA remains the "exclusive means" for surveillance within its defined ambit.
If this provision were to become law, it would seem to eliminated any vestige of the argument that the 2001 AUMF overrode FISA as it has stood since 1978. Supposedly the TSP is no longer in effect anyway, but administration officials have made a point of reasserting the claim that Article II trumps all.
This, to me, was a key point in AL's analysis. "The program the president confirmed" was described by the President as beginning shortly after 9/11 and continuing to at least the date of his speech (12/05). Thus, there is no basis for the claim that Gonzales can rely on a distinction between the "current" program and some "previous" program which ended in roughly March 2004. It's all one.
The fact that the speechwriters may not have been cleared is irrelevant. Gonzales is the one who claimed he was referring to "the program the president confirmed".
Greenburg outlined the alternatives and said "he is, at the very least, likely to open an internal DOJ investigation into whether Gonzales committed perjury when testifying on the Hill."
Folks, reading over the thread, this is all just about burdens of proof -- how high they should be and who has them. AL and those who agree with AL assume a low burden of proof or think the AG should bear it. I assume a higher burden of proof and think it's on those who are making the allegation of wrongdoing.
I don't think there are any objective answers to who has the burden of proof or how high it should be, as we're talking about political judgments about what makes us comfortable rather than legal conclusions. So maybe it's best if we just conclude that the evidence is unclear, and different people are going to reach different conclusions based on it.
What one "seeks to characterize" as misleading is one thing. Gonzales's litany of "I don't recall" is something else entirely.
What's the standard for starting an investigation? (I'm not trying to be snarky; I really don't know. And to me, the entire question is what's the standard.)
To quote you, "[p]erhaps you could tell us why you find those arguments and the ones presented elsewhere in this thread to be unpersuasive."
But let's say reasonable suspicion. Would you consider that standard to have been met, based on the exposition by AL and others above?
Objectively, I can't cite authority that would answer that definitively. But in real life, as I mentioned above, Paul Clement is not acting as a law professor or a blogger. He really has to decide.
So even if we all agree to disagree on the standard, or agree that we don't know what the standard is, perhaps it is useful to examine what methods Clement must use to answer the question, what conflicts he will have, and where this might lead:
1) How far into the facts must Clement, himself, delve before deciding to either kill the matter or appoint a special counsel? Obviously, he doesn't have to carry the investigation to a conclusion before deciding whether to start it.
2) How much does Clement know about the secret stuff we still wonder about? His office has argued several cases about the TSP in court, including classified material. Does he have to find out classified details even to make a decision on how to proceed?
3) What would it do to Clement's reputation -- now sterling -- if he announced that he had decided on his own not to pursue the matter, but he couldn't say why because it's a secret?
4) What precedents are there under the 2003 DOJ regulations Greenburg describes? I can only think of one -- the Plame case, in which Ashcroft recused himself quickly, handing the decision off to Comey. He, in turn, quickly appointed Patrick Fitzgerald from the ranks of U.S. attorneys, and gave him a broad independent mandate.
5) If there is a preliminary internal investigation or a special counsel, would Bush intervene personally as he did to stop the prior OPR investigation into the surveillance matter by denying security clearances to the DOJ investigators?
6) Would Bush, excercising his constitutional authority, order Clement not to appoint a special counsel? That would be a distant echo of the Saturday Night Massacre. At least such a direct order might get Clement off the hook, sort of. Or maybe not.
7) How would an aggressive special counsel -- imagine a Fitzgerald clone here -- feel about being limited to the narrow questions of Gonzales' credibility. If he is forbidden in advance to consider underlying violations of FISA, etc., that might inevitably be discovered, does that compromise his position by preventing him from following the facts and the law wherever they lead?
I simply find an assertion that something has not been conclusively proven and therefore does not meet a high standard of proof to more often than not be a sophomoric attempt to evade the implications of what has been proven -- especially when the asserter gives the impression of hiding from prior specific arguments and questions behind cliches like, "we'll just have to agree to disagree."
Why should we accept what your assertion of a very high threshold of proof of wrongdoing before pursuing a ready path of investigation into what appear on their face to be clear conflicts between the Attorney General's testimony and the evidence in the public record?
1) Would reasonable suspicion be the right standard in any other case of ordinary persons under the perjury statutes or 18 USC 1505, where there was no question of a conflict of interest?
2) If so, is there reasonable suspicion here?
3) If so, is there a conflict here requiring a special counsel? That piece seems like a no-brainer. Yes.
Sad if true. I would have thought that, where the nation's top lawyer &law enforcement officer is concerned, reasonable suspicion would be *more* than enough ... indeed, that it would lead him to resign or take leave of absence.
But AG AG figures, if you can't prove it on me, then I'm stayin'. Prof. Kerr's standard for investigation would seem to support Gonzales in that effrontery, I regret to say.
1) Why do you think my answers are evasive? I have written 9-10 comments in this thread: which ones were the evasive ones? All of them? Just some of them?
2) Why do you think my answers are selective? I have written 9-10 comments in this thread: which ones were the selective ones? All of them? Just some of them?
3) Why do you think there is a "shift" from saying that allegations of perjury are "pretty weak" to saying that there is "reasonable suspicion" of "some crime afoot"? Why are those inconsistent, and what is the nature of the inconsistency?
5) Why do you think I demand a "tight" standard of proof, or as you put in in the comment aove, "very tight"? What makes the standard of proof I suggest "very tight"?
6) What is the appropriate standards of proof here? Why?
Thanks,
Orin
Then at the confirmation hearings for Gonzales' replacement they can force the new AG to appoint a special prosecutor as part of the condition of the confirmation. Then the real fishing expedition can begin.
This isn't about Gonzales, this is about the want, the need of Democrats to get a special prosecutor do dig up dirt for them for the 2008 election.
You apparently disagree. Fine, that's America.
My own view is that we know too little about the program(s) that Gonzo testified about to express an informed opinion as to whether he was lying, omitting some things, trying to be literally truthful but deceptive, etc. Yes, people have posited uncorroborated, yet interesting, theories and explanations on both sides of this issue, but that is all I have read, guesses and speculation.
In short, because of the classified nature of the programs, in this case we will have to rely on the elected members of Congress who have been granted access to some of the "programs" to decide whether they think Gonzo misled them. Schumer, for me, is not as credible on this issue as Leahy and Specter, because he does not have access to classified information on these programs. Neither Leahy nor Specter have asked for a special counsel, but they have asked Gonzo to clarify his testimony.
But I think it is an error to ignore the rest of the problem. As I wrote in this this post, if the Democrats succeed in impeaching Gonzalez, we will be without an Attorney General for the next 18 months or so. (Unless he resigns, which I consider unlikely.) And the AG, like it or not, is a key person in the war on terror.
And we have to recognize that the Democratic partisans at the Justice Department would be even more out of control if impeachment proceedings begin than they are now. The attacks on Bush -- who was elected (twice) after all -- by the bureaucracy should trouble everyone who believes in democratic control of the bureacrats.
It was wrong when bureacrats at the Pentagon undermined President Clinton with leaks; it is wrong to see the same being done to President Bush by bureaucrats at the CIA, the State Department, and the Justice Department.