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I have now read the Inspector General’s report, which can be examined here. As with the other reports that have recently emanated from Fine’s office, it is well crafted. I have been critical of Fine’s disinclination to recommend serious sanctions in many of the internal investigations he has handled, but his investigative work reflects a high level of professionalism. If anything, it is marked by caution in coming to conclusions and a willingness to fairly and carefully weigh the defenses that are offered up by his targets. These are the signs of a fair-minded prosecutor, and they are, frankly, little in evidence in today’s Department of Justice, particularly in politically charged public integrity cases.
It appears that some of the Gonzales notes at the focus of the query relate to a briefing of the “Gang of Eight”—Congressional leadership figures, including Nancy Pelosi, Jane Harman, and Jay Rockefeller on the Democratic side—about surveillance procedures. This has been a focus of some recent sharp criticism within Congress as Republican leaders imply that the Democrats knew of and at least implicitly approved the Administration’s tactics in overriding the limitations on domestic surveillance put in place by the FISA statute. The Gonzales notes will therefore be of some historical interest as records of the depth of the briefing that was given.
The report also demonstrates a rather curious defense mounted for Gonzales by his attorney, George Terwilliger, a man whose name repeatedly figured on the short list approved by movement conservatives to succeed Gonzales. Terwilliger appears to have taken aim at former Deputy Attorney General Jim Comey, arguing that he was an interloper at the hospital bedside conversation that Gonzales conducted with Ashcroft, at which Andrew Card and Mrs. Ashcroft were also present. The argument can’t work because Comey was the acting Attorney General at that point, as Ashcroft had turned over his duties to him on leaving for surgery. Moreover, Comey’s own testimony suggested he had been handling the very issues that Gonzales discussed with Ashcroft and had come out against the approvals that Gonzales sought. So why does Terwilliger make this argument? Clearly Gonzales felt particularly threatened by some evidence that Comey gave. It may be a while before we get to know the full scope of this relationship, but I suspect there is much more to this story.
There is a thematic consistency in Gonzales’s testimony, and it is forgetfulness. Just as he could not remember the contents of discussions about firing DOJ staffers and U.S. attorneys, particularly when the White House was involved, he doesn’t seem to remember anything much about the FISA controversy, the conflict with senior DOJ officials who were so moved by it that they threatened resignation, or what he did with highly classified documents in his possession. Maybe they were in his unlocked briefcase, maybe he took them home with him, maybe he put them in a safe. It’s all a blur, he says. One thing is clear: he didn’t pay it much mind.
But there is a bombshell lurking in the report. Gonzales testified that he did not recall the compartmentalized security classification given to certain documents
Gonzales said that he was unaware of the classification level and compartmented nature of the NSA program he referenced in the notes. Gonzales also stated he did not recall thinking that the notes themselves were classified.
But the notes were placed in one or two envelopes (there is a conflict on that, too), and Gonzales wrote the security classification and his initials on it.
So is this failure of recollection really credible? The Justice Department, in taking a pass on any action, is essentially saying this: if you’re a member of the home team and you mishandle classified documents, no sweat. In fact, you can even make false statements to the FBI agents who come to interview you about it without repercussions. A different standard applies to those who are not members of the home team, as Sandy Berger learned. This is setting a remarkably low standard for the nation’s chief law enforcement officer. But a politically motivated double standard on enforcement issues lies at the very soul of the Bush Justice Department.
John Conyers, the chair of the House Judiciary Committee, had the right word for the Justice Department’s response: “shocking.” Conyers demanded that the Justice Department explain, yet again, why it will not take enforcement action against its senior-most officer. But perhaps Justice is merely awaiting the last play–the Inspector General’s report on the U.S. Attorneys’ case that should be out any day now.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.
Estimated portion of registered voters in Zimbabwe who are dead:
Honeybees can recognize individual human faces.
Pope Francis announced that nuns could use social media, and a priest flew a hot-air balloon around the world.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”