Balkinization  

Friday, April 20, 2007

The Rubber Stamp

Marty Lederman

"[T]his was a process that was ongoing that I did not have transparency into."

That says it all, no?

The transcript of the Attorney General's hearing (in fifteen parts) begins here. Not surprisingly, the gist of the story is that when he recommended that the President remove the U.S. Attorneys, the Attorney General was not surprised to see some of the names on the list -- because he had previously heard complaints about them, including from Senator Domenici about David Iglesias -- but he didn't really know, nor inquire into, why these particular high-ranking officials were singled out for removal. Indeed, he had no idea who was responsible for putting any one of the names on the list. (And according to Senator Feinstein's account of Kyle Sampson's testimony, it wasn't Sampson, who described himself as merely "the aggregator." Nor was it Mike Battle, director of the Executive Office of the United States Attorneys, who said in an interview with the Committee, "I had no input. Nobody asked me for my input.")

[UPDATE: I belatedly just noticed Dahlia Lithwick's superlative take on Slate. A must-read. Samples: "How gloriously mechanical: The 'consensus judgments of the senior leadership' are fed to the 'aggregator,' who in turn passes them along to the AG who, as he claims, made a final decision without reviewing any criteria for the firing or any written document. It seems that at no point in this 'process' or 'project' did any human brain fire an actual neuron that triggered the message to terminate an actual U.S. attorney. . . . Those of us who arrived today thinking that Gonzales had some sort of brilliant master plan for winning over the judiciary committee are puzzled by the AG's strategy. You can't help but wonder what condition he was in last month before he started preparing full time." Also, check out Dahlia's description of what perhaps was substantively the most important exchange of the day, the one that actually has some explanatory force: Senator Whitehouse's comparison of the Clinton and Bush DOJ protocols for appropriate contacts between the White House and DOJ (with graphics!).]

Other highlights, such as they are:

FEINSTEIN: All right. And you're testifying to us that you made these decisions without ever looking at the performance reports.

GONZALES: Senator, that is correct.
* * * *
FEINGOLD: Did you at any time probe the information that Kyle Sampson provided to you, including the recommendations that he ultimately made in the seven U.S. attorneys to be fired?

GONZALES: Senator, I don't recall having specific questions or -- about specific -- I do recall that when the recommendations were made, I was not surprised to see five of the names on the list.

FEINGOLD: Did you ever talk to Deputy Attorney General Mr. McNulty about whether he was comfortable with the process that was under way?

GONZALES: With the process that was under way, I don't recall such a conversation, but afterwards, on the evening of Mr. Sampson's testimony I asked...

FEINGOLD: OK, I'm less interested in the -- I'm interested in the effects prior to. Did you ever talk to the head of the Executive Office of U.S. Attorneys or anyone else other than Mr. Sampson about whether the process was identifying the proper U.S. attorneys to be relieved of their positions?

GONZALES: What I recall were a conversation with Mr. Sampson -- that's what I recall, Senator.

FEINGOLD: Did you, at any time prior to your meeting on November 27th, 2006, ask for a report in writing on the progress of the project?

GONZALES: I don't recall asking for a report in writing.

FEINGOLD: How about when the final decisions were made at any time prior to November 27th, 2006, when you approved the firings? Were you given or did you request a written memo or report giving the justifications for each of the decisions?

GONZALES: Senator, I don't recall that occurring. Again, what I recall is Mr. Sampson presenting to me a recommendation which I understood to be the consensus recommendation of senior officials of the department.
* * * *

DURBIN: Did you ever have a conversation, after the appointment of Patrick Fitzgerald as the special counsel to investigate the White House over the Valerie Plame incident, with either the president or Mr. Rove about the removal of Patrick Fitzgerald?

GONZALES: Senator, I believe the answer to that is no.

DURBIN: And can I ask you about the other U.S. attorneys that were removed? Did you ever have a conversation with Karl Rove about the removal of David Iglesias?

GONZALES: Senator, I recall a conversation with Mr. Rove, but it wasn't a recommendation or a discussion about removal of Mr. Iglesias. But there was a discussion that I recall Mr. Rove had with me about voter fraud cases in three district, including New Mexico, which, of course, Mr. Iglesias is the United States attorney.

DURBIN: And what did Karl Rove say to you?

GONZALES: Senator, my recollection of the conversation was basically, "I've heard complaints about voter fraud prosecutions or lack of prosecutions." And again, I could be -- I'm paraphrasing. I don't recall precisely what he said, but it was general about voter fraud prosecutions, voter fraud cases in three districts including New Mexico.

DURBIN: And there was no conclusion to that conversation about the fate of Mr. Iglesias?

GONZALES: Senator, I believe that I communicated this information to Mr. Sampson, but I don't remember or recall what happened after that.
And so, we still do not know -- nor does the Attorney General himself -- exactly how the names of any of the U.S. Attorneys found their way onto the unadorned list in Kyle Sampson's desk drawer. In his written statement, the Attorney General said that he wanted to make sure "the Congress and the American people can be 100 percent assured of the facts." That's a worthy objective, of course. And because officials in the White House had significant involvement in the creation and development of the list that was presented to the Attorney General, Congress would need to have full disclosure of communications within the White House in order to be "100 percent assured of the facts" that led to the removals.

The President ordinarily does not assert Executive privilege without a recommendation to that effect from the Attorney General. If the Attorney General genuinely wihes to ensure that Congress and the public "can be 100 percent assured of the facts," will he recommend to the President that he assert Executive privilege in order to withhold communications within the White House (and in RNC databases) that would shed light on those facts?

Comments:

We knew he was incompetent, but we didn't know until now that incompetence reached the depths of Michael Brown's. Heck of a job, Gonzo.
 

We don't know whether he is/was incompetent, or whether he is simply brazenly lying. He may or may not have involved himself in the decision to remove the U.S. Attorneys. If he did, he's lying now about his lack of involvement; if he did not, perhaps he is lying as to why he did not. Perhaps he never cared, or perhaps other power players in the administration made it know that THEY wished the named U.S. Attorneys to be removed, and their approval/desire for removal may have made the action a fait accompli. Gonzalez is nothing in not a loyal vassal to Li'l Butch.

As in Libby's lying and obstruction in the Plame affair, where Fitzpatrick could not determine with certainty whether other crimes had or had not been committed, Gonzalez may be lying now, with the result that we cannot know--absent, perhaps, the missing millions of emails--what actually transpired, with the concomitant result that we cannot know for certain whether there was any criminal intent or act.
 

Pardon my typos in the previous post; I hit "publish" when I meant to hit "preview."

By the way, my personal belief is that Gonzalez, as with seemingly every other member of Li'l Butch's administration, is lying out his ass. What we don't know is HOW MUCH he's lying, (as opposed to how much may be actual negligence in his execution of his professional duties and responsibilites).

I think they would rather be seen as "incompetent" than as willfully culpable; they rightly see this as an exculpatory excuse: "We weren't criminals, we were just misinformed/ignorant/out of the loop." (I say "rightly" not because I believe it be truly exculpatory, but because they've learned through practice that the media and the public will tend to give them a pass for ignorance rather than for malice aforethought. Moreover, to the extent Congress has not pressed for better answers than "I don't know/I can't recall," this "incompetence" does block us from the possibility of determining criminality.)
 

Senator Whitehouse's comparison of the Clinton and Bush DOJ protocols for appropriate contacts between the White House and DOJ (with graphics!).

Thanks for pointing those out! That is a very telling diagram, indeed.
 

I guess nobody told Gonzales that the Eichmann defense wasn't very plausible.
 

Mark Field said...

I guess nobody told Gonzales that the Eichmann defense wasn't very plausible.

The "I don't recall" strategy to avoid answering questions has a much more recent pedigree. Check out the transcripts for any number of Clinton Administration figures with remarkably scant memories while under oath. They made the Mafia code of "omerta" look like a seive.

However, you are correct that claiming lack of memory was and is not very plausible. Gonzales needs to find a family emergency to attend to. The famed Bush loyalty gets a bit thin with some of these incompetents.
 

"Bart" DePalma:

he famed Bush loyalty gets a bit thin with some of these incompetents.

No comment.

Cheers,
 

Frankly, the thing that popped into my mind as I was watching Gonzales testify was the Alan Glick character from the movie “Casino”. He was the befuddled guy who was installed by the mob as the “owner” of the fictional Tangiers casino and was described by another character thusly: “I don’t know where they got this guy. He didn’t know very much and he didn’t want to know very much.” Same deal here---somebody obviously told Gonzales that he could be the “Attorney General” but he shouldn’t interfere with the political commissars actually running Main Justice. Which was, apparently, okay with him.

The other thing that struck me was that Gonzales was the single worst witness I have ever seen testifying in my life. He spent nearly a month prepping for this? How pathetic!
 

The other thing that struck me was that Gonzales was the single worst witness I have ever seen testifying in my life. He spent nearly a month prepping for this? How pathetic!

Before he testified there were leaks about his poor performance in the prep sessions. I actually thought these leaks were intended to create low expectations so that he'd exceed them and be seen as "successful". Turns out, no one will ever go broke underestimating the incompetence (or is it dishonesty?) of AGAG.
 

... But see also Lithwick's second post on the topic, from this afternoon, speculating that maybe Gonzo was incompetent like a fox, and this performance was a brilliant execution of the unitary executive theory.
 

The "I don't recall" strategy to avoid answering questions has a much more recent pedigree.

The thing about pedigrees is that you generally use them to trace backwards, not forwards. It's silly to say it started in the Clinton administration. Reagan himself could also be your go-to-guy for the "oh I forgot" approach, having pulled it off successfully on numerous occasions.

Gonzales also used the same approach to the infamous torture memo during his nomination hearings, iirc.
 

The members of the first Congress, in setting up executive departments and their executive officers, argued that they could allow the president to hire and fire the heads of the departments because if it became necessary the Congress could impeach them. Maybe we should impeach Gonzales.
 

The thing about pedigrees is that you generally use them to trace backwards, not forwards. It's silly to say it started in the Clinton administration. Reagan himself could also be your go-to-guy for the "oh I forgot" approach, having pulled it off successfully on numerous occasions.

The "I can't recall" defense became famous from Ehrlichman's testimony in the Ervin Committee hearings.
 

One interesting aspect of the Gonzalez debacle is that it happened because the lawyers on the committee acted like lawyers. They asked sharp questions instead of making speeches. The Roberts and Alito hearings would have been a lot more useful if the committee members had been asking short, pointed questions - conducting a cross-examination - back then.
David Rosen
 

Sen. Whitehouse's charts are available online in several places. There is a dkos diary that has them posted here.

He's hosting his images at imageshack, which will probably cap out his bandwidth at some point. I've copied and reposted the charts at my own blog, here.
 

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