Given the contention surrounding Attorney General Michael Mukasey’s confirmation, it’s possible the new AG wants to start his tenure on the right foot, demonstrating just how different he is from his disgraced predecessor, and earning some goodwill from those who expressed doubts about his independence.
And if that’s the case, this is an encouraging sign.
First, a little background. We learned in early 2006 that the Justice Department’s ethics office had launched a preliminary probe of the department’s lawyers who approved the president’s warrantless-search program. But just as the investigation got underway, the head of the department’s Office of Professional Responsibility, H. Marshall Jarrett, explained that his staffers, all of whom had been subject to rigorous background checks, had been denied security clearances for access to information about the surveillance program. No clearance meant no investigation.
In July 2006, Gonzales acknowledged that Bush personally intervened to block the Justice Department investigation, but would not explain why. Senate Democrats howled about the obstruction and asked the Judiciary Committee to pursue the matter, but Senate Republicans, incurious bunch that they are, swept the whole thing under the rug.
This week, to his credit, Mukasey got the probe back on track.
“We recently received the necessary security clearances and are now able to proceed with our investigation,” H. Marshall Jarrett, counsel for the OPR, wrote to Rep. Maurice Hinchey, D-N.Y. A copy of the letter, dated Tuesday, was obtained by The Associated Press. […]
“I am happily surprised,” Hinchey said. “It now seems because we have a new attorney general the situation has changed. Maybe this attorney general understands that his obligation is not to be the private counsel to the president but the chief law enforcement officer for the entire country.”
According to a Justice Department statement, the investigation “will focus on whether the DOJ attorneys who were involved complied with their ethical obligations of providing competent legal advice to their client and of adhering to their duty of candor to the court.”
Maybe it really is a new day at the DOJ.
As for the probe itself, the biggest loser here is likely to be Alberto Gonzales. Murray Waas had this scoop a few months ago.
Sources familiar with the halted inquiry said that if the probe had been allowed to continue, it would have examined Gonzales’s role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general.
Both the White House and Gonzales declined comment on two issues — whether Gonzales informed Bush that his own conduct was about to be scrutinized, and whether he urged the president to close down the investigation, which had been requested by Democratic members of Congress.
Current and former Justice Department officials, as well as experts in legal ethics, question the propriety of Gonzales’s continuing to advise Bush about the investigation after learning that it might examine his own actions. The attorney general, they say, was remiss if he did not disclose that information to the president. But if Gonzales did inform Bush about the possibility and the president responded by stymieing the probe, that would raise even more-serious questions as to whether Bush acted to protect Gonzales, they said.
President Bush’s shutting down of the Justice Department probe was disclosed in July. However, it has not been previously reported that investigators were about to question at least two crucial witnesses and examine documents that might have shed light on Gonzales’s role in authorizing and overseeing the eavesdropping program.
When one talks about obstructing justice, isn’t this a rather literal example?
Stephen Gillers, a law professor at the New York University School of Law and an expert on legal ethics issues, questioned Gonzales’s role in advising Bush in any capacity about the probe after he learned that his own conduct might be scrutinized: “If the attorney general was on notice that he was a person of interest to the OPR inquiry, he should have stepped aside and not been involved in any decisions about the scope or the continuation of the investigation.”
Robert Litt, a principal associate deputy attorney general during the Clinton administration, agreed. Gonzales “should have recused himself. He should not have played a role in an investigation that touches upon him.”
An even more serious issue, according to Gillers, Litt, and others is whether Gonzales informed Bush that the investigation was going to examine his actions. “Did the president know that Gonzales might have been shutting down the police force when it was looking into his own behavior?” Gillers asked.
We may soon find out.