Justice Department to reopen wiretapping probe

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.

I’m figuring Mukasey promised this behind closed doors to get confirmed.

  • “Maybe it really is a new day at the DOJ.”

    i’m certainly not ready to go that far yet……….although it is certainly an encouraging sign.

  • On its face, it’s encouraging news, but I’m not getting my hopes up. This administration has much in common with the Nixon administration – it will stonewall any investigation that gets too close to uncovering something criminal. In the end, it took an impeachment process to smoke out the Nixonian wrongdoing, and so it is with the Bush administration.

    That isn’t going to happen.

  • how convenient. re-open an investigation that will, of course, put it out of bounds for any comment from the administration ‘while an ongoing investigation is underway’. and it’s something that can be dragged out for months….

    nice.

  • What? BushCo obstructing justice? NO WAY.

    If that was the case, Nancy Pelosi wouldn’t have taken impeachment off the table.

    And you know what? If the Democratic “leadership” had shown some spine earlier this year we would have had Gonzales impeached long ago, and that would have put a lot more fear into Mukasey or whoever the replacement was. As it is now, Mukasey is probably well aware of the danger he’s in if he follows Gonzales’ slimy footsteps, but it could have been much clearer if the Democrats had actually done their duty.

    And of course it’s good to say that if it wasn’t for the liberal blogisphere, TPM in particular, Gonzales would still be there grinning at us.

  • Six years ago I could see the Mukasey nomination as having a silver lining. Now, like Linda, all I see are conspiracies. Bush has managed not only to ruin the Constitution, the budget, the military and Iraq, but he’s polarized people like me so badly that I don’t believe anything coming from anyone in government any more. I guess this proves that the terrorists won. Without a willingness to compromise and the belief that our opponents can behave honorably, democracy can’t exist.

  • OfM

    I’m not getting my hopes up either. I really thought Cheney (who is behind all these “executive decisions”) would not put forward anyone for AG who wouldn’t support the administration’s unconstitutional and illegal moves

    Maybe I was wrong, but I don’t think I’m wrong about my conviction that this administration will do ANYTHING to avoid taking responsibility for its actions and will do ANYTHING to avoid the prosecution of those in the administration who are found to have broken laws pursuant to the authority of the VP or President.

    There’s always a presidential pardon. Scooter Libby.

    Any kind of thinking about the future is speculation, of course, so anything could happen. But the administration has been utterly consistent in protecting their own hides and I don’t think that will change.

  • I wish Mr. Mukasey all the best. In the end, Bush will declare Double-Secret Executive Privilege and we’ll know no more than we did before the investigation.

    The likelihood seems high that Harry & The Craven Cave-ins will pass retroactive immunity for the T-Coms anyway so the whoie thing is pretty much moot.

  • Doesn’t it seem like for something like this to happen this fast, it would almost have to have been something agreed to in advance? I have to at least wonder if Mukasey might have made it a condition of his acceptance of Bush’s nomination offer.

  • Why do I see Mukasey wearing a straw hat and overalls painting a fence with Huck Finn?

    Oh, right. Whitewashing.

  • Of course it could also be part of a plan (with or without Mukasey’s complicity) to pin the whole thing on Gonzsales then pardon him. That would explain the revelation that the reason Bush blocked the investigation previously was because it led to Gonzales himself. Certainly the Bush White House would never voluntarily reveal information like that without a reason of their own.

  • This “investigation” will follow the pattern of the CIA Leak investigation, only the clock would run out a lot sooner. Bush would not want the investigation continuing into a new, most likely Democratic DOJ so I would think this investigation will be strung out until pardon time. The pardons would be in advance as Ford did for Nixon and not for anyone actually found guilty. linda at 4 has picked up on this. This so-called investigation will remove any onus from Bush and Co. to answer any questions “while an on-going investigation is underway” as played out in the CIA Leak.

  • Here’s a headline from today’s yahoo news:
    “Bush promises to help Mukasey rebuild Justice Dept”

    My responses:
    1) This sounds more like a threat than a promise.
    2) Please bush, no, just stay away.

    Isn’t the DOJ supposed to be somewhat independent??? (OK, you can stop laughing anytime now).

  • Count me among the skeptics at this point. Seems quite possible to me that the “investigation” will lead to a few DOJ fall guys who get fired and then the whole thing stops without ever getting to the current executive branch.

  • What U all said @ 4, 12 & 13 +
    the leaders of the next Congress will announce,”…this congress shall not dwell upon the past, blah blah…” & That will be that.

    Maybe gonzo does a small stretch, or not. Everyone else gets away with it.

    The USA is ruled, raped & ripped off for 8 years by a bloody criminal & genocidal enterprise & nobody saw nothin’.

  • I don’t know if anything real will come of this – it is just to early to say and I don’t like to assume bad intentions – but just the fact that they are starting it is more than Fredo did. Sadly my happiness with this just indicates how low my (our) expectations are.

  • 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.” — CB

    Sounds like he’s recusing himself now. Better late than never, I suppose but might be indicative of him being the designated fall guy. Ie the buck (or investigation) will stop there.

    http://thinkprogress.org/2007/11/14/wheres-fredo/

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