Do not forsake me, oh my darlin’ …
The Senate Judiciary Committee has reached an agreement with the White House to produce a letter to “clarify” the testimony of Alberto Gonzales on his midnight meeting at the hospital with John Ashcroft. The letter must arrive by noon today, and the committee will release it immediately to the news media. At that point, they will determine whether to recommend an investigation into perjury charges against the Attorney General (via Memeorandum):
The Senate Judiciary Committee’s ranking Republican, Arlen Specter (Pa.), emerged from a crucial Monday briefing and gave the Bush administration 18 hours to resolve the controversy over apparent contradictions in Attorney General Alberto Gonzales’s congressional testimony.
Gonzales took issue last week with former Deputy Attorney General James Comey’s description of internal dissent in 2004 over the legal authority for the National Security Agency’s (NSA) warrantless eavesdropping program. Frustrated Democrats called for a special prosecutor to investigate Gonzales for perjury, noting that several officials have publicly echoed Comey’s account. Those calls prompted Specter to request a classified briefing to clear up the dispute.
Specter aides released a statement late Monday that suggested a bombshell to come on Tuesday afternoon.
“Given the difficulty of discussing classified matters in public, I think it is preferable to have a letter addressing that question [of Gonzales’ veracity] from the administration … by noon tomorrow, which will be made available to the news media,” Specter wrote in the statement. “The administration has committed to producing such a letter.”
Whatever the letter says, the perjury issue will likely die off, as even Ruth Marcus notes in her Washington Post column today. No fan of the AG, Marcus argues that Gonzales didn’t commit perjury, and that the Senate would be foolish to argue otherwise:
As the Times put it, “If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales’ defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct.”
Congress deserves better than technically correct linguistic parsing. So the bipartisan fury at Gonzales is understandable. Lawmakers are in full Howard Beale mode, mad as hell at Gonzales and not wanting to take it anymore.
But perjury is a crime that demands parsing: To be convicted, the person must have “willfully” stated a “material matter which he does not believe to be true.”
The Supreme Court could have been writing about Gonzales when it ruled that “the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth” — even if the answers “were not guileless but were shrewdly calculated to evade.”
In other words, the Senate Judiciary Committee did a lousy job of asking the right questions. In fact, Gonzales tried to tell them that during the interrogation, which I watched as it happened. The committee members should have easily read Gonzales’ desire to go into private session to clarify his answers at that moment, but they either were too caught up in themselves to notice or deliberately ignored it. He obviously wanted to give them a more complete answer but could not do so in open testimony, due to the nature of the counterterrorism activity.
Marcus is right in another respect, which is that Congress has taken this badgering too far. These programs over which they have attempted to trip Gonzales are not new, and Congress has been aware of them for almost six years. Regardless of whether the data-mining efforts qualify as a separate program or not, the entire effort has been overseen by Congressional delegations since 2001, and kept in check by them and the DoJ since. If the Senate thinks that it has moved outside of the legal boundaries established in 2001 and adjusted at the insistence of Congress and the DoJ in 2004, then ask about that — but quit playing games and exposing confidential national-security efforts just to harangue Gonzales out of office.
I say this as no fan of the AG, as CQ readers know. My friends at Power Line have an excellent post up about why they feel the need to defend Gonzales. They see him as strong on the war (agreed) and able to stand up to the Democrats in Congress. I disagree, both on his ability and the requirement of the latter. His appearances before Congress have been disasters in which he has argued that he has little knowledge of what his aides do at his own department, even to the extent of firing high-profile presidential appointments without any guidance from him.
The AG, in a perfect world, should be fairly independent and minimize the politicization of the Justice Department in order to maintain confidence in the fairness of prosecutions and the implementation of policy. It’s when this office seems excessively partisan that we get the plague of independent prosecutors that run roughshod over justice. This administration is not the first to have a politicized DoJ, but it’s not something we should encourage.
Gonzales should have resigned months ago, but the Senate has now made that almost impossible with their hysterics over a perjury that never happened. We’ll see which side backs down at High Noon today. Unfortunately, we’re woefully short of Gary Coopers these days.