Welcome to Gonzales Watch - Blawging the Ex-Attorney General

Solicitor General Paul D. Clement advised President Bush yesterday that there was no need for him to comply with subpoenas from the House and Senate seeking documents and testimony from current and former White House staff over the U.S. Attorney firings scandal.

“It is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony,” he advised.

Clement’s rejection of the subpoenas match’s White House Counsel Fred Fielding’s rejection of the subpoenas today (Click here to read Fielding’s letter).

Here are the 8-pages of legal advice and reasoning from Clement to Pres. Bush:

Unfortunately, the response was predictable.

The subpoenas that the Senate Judiciary Committee served on the White House, Dick Cheney, National Security Council, and Dept. of Justice were rejected by the White House within less than twenty-four hours.

The Committee’s latest subpoenas were preceded by similar subpoenas that it served on former White House and Justice Department officials:

* A subpoena was issued by the Committee on June 13, 2007 to former White House Counsel Harriet Miers over the U.S. Attorney firings debacle. Miers was givien a July 12, 2007 deadline to comply with the subpoena.

* The Committee served a subpoena on Attorney General Alberto Gonzales on May 2, 2007 when he failed to comply with its repeated requests for turning over correspondence (e-mail, etc.) involving White House Deputy Chief of Staff Karl Rove and his use of non-White House e-mail to conduct goverment business.

The latest legal battle stems from the revelation by former Deputy Attorney General James Comey that Gonzales tried (unsuccessfully) to ram-rod a very ill Attorney General John Ashcroft into extending warrantless domestic surveillance just after Justice Department officials had concluded that it was unconstitutional.

Youc an re-examine Comey’s testimony here:

Here is the letter sent by the Senate Judiciary Committee today upon U.S. Attorney General Alberto Gonzales detailing why subpoenas where served on the White House and Vice-President Dick Cheney.

Chairman Leahy explains that the Committee is demanding documents relating to President Bush’s domestic warrantless electronic surveillance program, or what Bush termed the “Terrorist Surveillance Program.”

The Honorable Alberto Gonzales
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Dear Attorney General Gonzales:

For more than five years, the Bush Administration intercepted
conversations of Americans in the United States without warrants and
without following the procedures of the Foreign Intelligence
Surveillance Act (FISA). The President confirmed this fact soon after
it became public in December 2005. Since that time, the Senate
Judiciary Committee has conducted an inquiry into this warrantless
electronic surveillance. Over the past 18 months, this Committee has
made no fewer than nine formal requests to the Department of Justice and
to the White House, seeking information and documents about the
authorization of and legal justification for this program. All requests
have been rebuffed. Our attempts to obtain information through
testimony of Administration witnesses have been met with a consistent
pattern of evasion and misdirection.

Therefore, attached is a subpoena for documents related to the
Committee’s inquiry into the program or programs of warrantless
electronic surveillance. The subpoena seeks, among other things,
documents related to authorization and reauthorization of that
surveillance; legal analysis or opinions about the surveillance; orders,
decisions, or opinions of the Foreign Intelligence Surveillance Court
(FISC) concerning the surveillance; agreements between the Executive
Branch and telecommunications or other companies regarding liability for
assisting with or participating in the surveillance; and documents
concerning the shutting down of an investigation of the Department of
Justice’s Office of Professional Responsibility (OPR) concerning the
surveillance.

This Committee’s inquiry into this warrantless electronic surveillance
is essential to the performance of its constitutional legislative and
oversight responsibilities. The Administration has asked Congress to
make sweeping changes to FISA - a crucial national security authority
over which the Judiciary Committee has jurisdiction. It is impossible
to make informed legislative decisions without understanding fully the
Administration’s interpretation of FISA and the perceived flaws in that
legislation that led the Administration to operate a program outside of
its provisions for more than five years. It is not enough to know the
Administration’s current legal justification for the surveillance. All
indications are that the legal analysis supporting this program of
warrantless surveillance, and perhaps the program itself, has changed
more than once since its inception; it could very well change again.
For the Congress to legislate effectively in this area it must have full
information about the Executive Branch’s interpretations of FISA and how
those interpretations have affected its enforcement of the Act.

The Administration’s FISA proposal also contains provisions that would
bring to an end lawsuits concerning participation of telecommunications
carriers and other companies in this program of warrantless
surveillance. This Committee cannot responsibly consider those
provisions without knowing what government officials and the companies
understood to be the legal basis for that participation at the time it
occurred. The Supreme Court has said that “[a] legislative body cannot
legislate wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or change,”
McGrain v. Dougherty, 273 U.S. 135, 175 (1927). The documents this
Committee seeks are just that sort of information and we cannot do our
job without them.

In addition, the Judiciary Committee is charged with oversight of the
Executive Branch in the areas of constitutional protections and the
civil liberties of Americans. The warrantless electronic surveillance
program directly impacts those responsibilities. We cannot conduct this
oversight without knowing the legal arguments the Administration has
used to justify interception of the communications of Americans without
a warrant. This Committee would be abdicating its responsibility if it
failed to examine Executive Branch actions simply because we are told
they have stopped. We have been given no assurance that these
activities, or similar ones, will not resume based on the same or
similar legal arguments. This Committee must conduct oversight to
consider whether it wishes to act, through legislation or otherwise, to
prevent such recurrence.

Oversight is also necessary to determine whether the Administration has
conducted itself appropriately in carrying out and defending this
warrantless surveillance. The testimony of former Deputy Attorney
General James Comey before this Committee raises serious questions about
the Administration’s commitment to the rule of law. He testified that
only the prospect of a mass resignation of virtually every senior
officer in the Department of Justice caused the President to address
serious Justice Department concerns about legality of the program. This
came after the program had already been operating for more than two
years. Later, when you were asked during testimony before this
Committee whether senior Justice Department officials expressed
reservations about the warrantless surveillance program, you responded
“I do not believe that these DOJ officials . . . had concerns about this
program.” That response, at the very least, calls into question your
candor with this Committee.

Finally, when the Department of Justice’s own Office of Professional
Responsibility (OPR) began an internal investigation into the role of
Department of Justice attorneys in the authorization and oversight of
the warrantless surveillance program, the Department of Justice and the
White House denied the investigators the clearances they needed, thereby
shutting the investigation down. The head of OPR has noted that in its
31-year history OPR has never before been prevented from pursuing an
investigation. This action, too, raises questions about the
Administration’s motives and behavior.

There is no legitimate argument for withholding the requested materials
from this Committee. The Administration cannot thwart the Congress’s
conduct of its constitutional duties with sweeping assertions of secrecy
and privilege. The Committee seeks no intimate operational facts and we
are willing to accommodate legitimate redactions of the documents we
seek to eliminate reference to these details. We ask that you segregate
any documents containing classified national security information and
deliver those separately to the Office of Senate Security in Room S-407
of the Capitol, where they will be maintained in compliance with all
security laws and regulations. Only Committee members and appropriately
cleared staff will be permitted to review them.

I continue to hope that the Department of Justice will cooperate with
the Committee’s investigation; this Committee remains willing to work to
with you and accommodate legitimate concerns in connection with your
compliance with this subpoena. I look forward to your compliance with
the Judiciary Committee’s subpoena by the return date of July 18, 2007.

Sincerely,

PATRICK LEAHY
Chairman

The Senate’s intention of holding a no-confidence vote on the Attorney General really irks President Bush. At a press conference on his Texas ranch with NATO Secretary General de Hoop Scheffer today, the President continued to stand by his lawman, U.S. Attorney General Alberto Gonzales.

One reporter asked Bush about the reported no-confidence vote concerning the Attorney General that’s looming in the Senate: “Is it your intention to keep Alberto Gonzales as your Attorney General for the rest of your administration, regardless of what the Senate does?”

The president’s answer remained consistent with his other unwaivering statements he’s made in te past:

“He has got my confidence. He has done nothing wrong. There’s been enormous amount of attention on him — that there’s been no wrongdoing on his part. He has testified in front of Congress. And I, frankly, view what’s taking place in Washington today as pure political theater. And it is this kind of political theater that has caused the American people to lose confidence in how Washington operates.

I stand by Al Gonzales and I would hope that people would be more sober in how they address these important issues. And they ought to get the job done of passing legislation, as opposed to figuring out how to be actors on the political theater stage.”

Bush’s suggestion that the bipartisan opposition to Gonzales remaining in office as being nothing more than “political theatre” is, reality, political theatre itself. As this blog observed over the last two months, the Gonzales’ repeated statements that he’s hard at work on more important things like catching child predators has been nothing less than a calculated strategy of trying to shift public attention away from why he failed to respond to a subpoena from Congress, attempt to shift attention away from repeated calls for his resignation.