Gonzales Testifies Before Senate Panel, Part III

CQ Transcripts Wire
Thursday, April 19, 2007 7:53 PM

The transcript is continued from Part II

SEN. SHELDON WHITEHOUSE, D-R.I.: Thank you, Mr. Chairman.

Here's what concerns me, Attorney General Gonzales. The administration of justice in our country is controlled within structures. Some of them are constitutional structures. Some of them are statutory structures.

But some of them are structures that have developed over time, that amount to tradition and practice, but they're there for good and important reasons.

And my concern, after reading your testimony and hearing your testimony today, is that you don't seem to be aware of the damage to those structures that this episode has caused.

And I'd like to run a few by you, just to let you know where I'm coming from.

The two areas where you ask us to agree with you, in your testimony: The first is that U.S. attorneys can be fired at will by the president. That's undeniably true, but I think its use as a rhetorical point in this discussion is highly misleading, deeply misleading.

Because I think you and I both know that, for years, for decades, there has been a tradition of independence on the part of United States attorneys.

Once they're appointed, unless there is misconduct, they're left to do their jobs. And that rule, that practice, has existed for good and meaningful reason. And it can't be overlooked by just blithely saying, well, the president has the power to remove these people.

That misses the point. These people make tough decisions. They're out there on their own very different. Very often, the Department of Justice and the political environment that surrounds it is one that you want to protect them from.

And the idea that, willy-nilly, senior staff people can come out and have the heads of U.S. attorneys -- I think it's highly damaging to that peace of structure.

This was not customary practice. We can agree on that, can we not?

GONZALES: Senator, I think that that's -- I do agree on that. And I do agree with you that structures and traditions are important. I agree with that as well.

WHITEHOUSE: Well, the second piece of the structure here that I think is significant is that, although you, as attorney general, are in command of the administration of justice in the federal system, there's actually very little prosecution that takes place out of main Justice.

The enormous majority of the prosecutive authority of the United States of America has been dispersed out into 93 judicial districts. and it's been dispersed to men and women who have certain characteristics.

One is that they're from the local community, and when they're done, they go back and they live in that local community.

WHITEHOUSE: And it's good for the administration of justice when they're accountable in that way for their decisions, given the power and often terror that prosecutive action can create in a family.

The second is that they've got to get a senator to sign off on it. In fact, they've got to get a majority of the whole Senate to sign off on it, and the president of the United States.

And when those things happen, it creates a corps, if you will -- c-o-r-p-s -- a corps of practicality, of common sense, of responsibility, of experience that I consider to be a huge value to the administration of justice in this country.

And in every way in which this was handled, it is highly destructive of that independence, whether it's people from Justice going out and taking these positions, whether it's ducking Senate confirmation, whether it's not bringing people from the local community up to take those positions or whether it's the general level of disrespect that's been shown for the United States attorneys through this whole process.

And I guess I'd like to ask you to comment. Do you think that that's a structural component of the administration of justice -- that dispersion of the authority out to 93 independent local U.S. attorneys -- that has value and that is important, that should be protected?

GONZALES: I do think it has value. And I think that the independence of the United States attorneys is important. I think United States attorneys should feel independent to exercise their judgment in prosecuting cases based upon the evidence.

However, I have to qualify that a bit, Senator, in that -- that with respect to policies and priorities, again, the president of the United States is elected based upon his policies and priorities.

WHITEHOUSE: I'll spot you that, Attorney General.

But my point is when you're making a decision like that, there's a counterbalance to it. When you go to Carol Lam and say, "You know what, you're not doing enough immigration prosecutions, therefore you're fired," there are all sorts of collateral consequences of that -- some of which are really quite damaging and evil, particularly when you're knocking off somebody who is known among her colleagues as being really the prime United States attorney in the country on public corruption prosecutions. It sends a really rough message.

So in the balancing between the structural protections and the respect and all of that, and this question of policy, I would hazard to you that you can't let the policy question just run away with the issue. You first think it through thoughtfully, and I can't find a place in the whole tragic record of this situation, in which that careful thought was administered.

GONZALES: No question about it. No question about it that we have to take into account how decisions may affect ongoing cases. There's no question about that.

But we also -- I think it's important for the American people to understand that even when there's a chance at the top with the attorney general, or a change in the United States attorney, the cases continue.

WHITEHOUSE: That's true.

GONZALES: The cases continue to be investigated.

WHITEHOUSE: As you and I know, the leadership from the U.S. attorney makes a big difference. That's why you thought these replacements were important in the first place.

GONZALES: They do -- they do make a big difference...

WHITEHOUSE: If I may make my second point, because I'm running out of time here. It's the second thing that you suggest, which is we should further agree on a definition of what an improper reason for the removal of a U.S. attorney would be. And over and over again you've used the word "improper" as sort of your target word as to where the boundary is, to where you should and shouldn't go.

But your definition of improper is almost exactly the same as Kyle Sampson's. He came in here and testified, he said, without consulting with anybody, and said that the improper reasons include an effort, and I quote, "to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage."

And your testimony is, "...to interfere with or influence a particular prosecution for partisan political gain."

You've loaded up those words. You've used them repeatedly. And I think that the definition of where impropriety lies, clearly that would be improper. That would be grotesquely improper.

But I think you've set the bar way low for yourself, if that's your standard of where impropriety is, because -- and I'd like to hear you comment on this -- I think any effort to add any partisan or political dimension into a U.S. attorney's conduct of his office, irrespective of whether it's intended to affect a particular case or not, is something that we need to react to firmly, strongly, resolutely, and without any tolerance for it.

And yet you've set the bar so that it's not impropriety until it affects a particular case.

Why did you do that?

GONZALES: Senator, because the accusations that have been made primarily, certainly as an initial matter, was that there was something improper; we were trying to interfere with particular cases.

And that's why certainly the focus in my mind was to focus on: OK, well, what is the legal standard?

And I think it's important for us to understand, as an initial matter: What is the legal standard; what would be inappropriate or improper?

WHITEHOUSE: But something a lot less than that would be improper, would it not? I mean, when Admiral Byng got hanged there was the famous comment: Every once in a while you got to hang an admiral just to encourage all the others.

You know, if you hang a U.S. attorney every once in a while just to discourage all the others, even if your intention is not to affect a particular case, you have to agree that would be highly improper.

GONZALES: Senator -- well, it may be improper as a matter of management. Some would have to wonder: Is that really an appropriate way to manage the department?

But, again, Senator, you have to understand that...

WHITEHOUSE: Well, otherwise it would be obstruction of justice, correct?

GONZALES: ... that these individuals have served their four years, they're holding over. There's no expectation of a job here. There shouldn't be, because of the fact that they are presidential appointees.

GONZALES: Now, clearly, as a management issue, there is value added to a person who has served as a United States attorney in terms of experience, expertise. And so, those things are very important.

WHITEHOUSE: It's more than just a management issue. It's an issue about the structure through which justice is administered in this country.

And when it's broken and when it's damaged and when the attorney general of the United States says the only place where impropriety exists is when political and partisan influence has risen to the point that it's intended to affect a particular case, but otherwise it's fine, I have a real problem. And I think everybody in America should have a real problem with that.

My time has expired.

LEAHY: Thank you very much.

Senator Kyl?

SEN. JON KYL, R-ARIZ.: Thank you, Mr. Chairman.

I think I'm last and I think just about everything's been said, but not everybody's said it, although I would say that it's been said better by some than by others.

And I think what Senator Whitehouse just did was to set out two very important points well. I'm not sure that the last point was adequately answered.

In addition to being wrong if you affected a particular corruption case, would it not also be an improper firing if it was for the purpose of generally affecting or influencing political corruption cases?

GONZALES: That would trouble me, Senator, because...

KYL: Wouldn't it more than trouble you?

GONZALES: Yes, I think that would be wrong.

KYL: OK, thank you.

GONZALES: I think U.S. -- well, go ahead.

KYL: So I think you and Senator Whitehouse and I can all agree that the standard that you set forth was not the one and only situation that would be improper, but described a situation that was being attributed to the Department of Justice in this particular episode.

GONZALES: We don't want -- we do not want to send the message that prosecutors should not follow the evidence and prosecute people. We want them to do that, absolutely. We don't want them to be discouraged.

And I don't want them to be discouraged from coming forward and being candid with their views about issues or about cases.

KYL: Let me ask you, as far as you know, since this has all occurred, has there been any difference in the way that any of the political corruption cases has been handled by the career prosecutors in any of the offices?

GONZALES: Senator, not to my knowledge.

But I think the American people need to understand that we have limited information in main Justice about cases being prosecuted around the country. We really have limited information. For good reason, I think.

KYL: Yes, indeed. And I would close this part of my -- because I have two other questions I want to ask.

There are thousands of pages of documents and hundreds of hours of testimony and interviews. And I found it instructive that Senator Schumer would suggest this morning what I gather is a new conspiracy theory standard, which is, if the evidence doesn't show any violation of what all would agree would be proper practices, in this case, an attempt to influence political corruption cases, that, therefore, the burden should shift to the Department of Justice to prove that it didn't happen, in effect to prove a negative.

That would be wrong; it would be unprecedented; and in my view, it would be dangerous.

Since this is an oversight hearing, I would like to ask about a couple of other matters.

I want to thank you, first of all, for visiting recently with me about funding for crime victims' rights. As you know, I remain very concerned about that.

And I just want to follow up on our conversation and see if we can get some additional information by having a meeting next week, not involving you, but involving both John Gillis, who's the director of the Office for Victims of Crime, and Will Moschella. Would you assist me in setting up such a meeting next week?

GONZALES: Yes, sir.

KYL: Thank you very much.

And on the other matter, relating to Internet gambling. I want to applaud your office for cracking down on Internet gambling through a number of prosecutions that have recently occurred.

As you know, last October 13th the president signed into law the Unlawful Internet Gambling Enforcement Act. And one of its purpose is to target these offshore gambling operations that are not readily subject to U.S. prosecution.

The law creates tools to enforce federal and state gambling laws, particularly with these Web site operators offshore. The purpose is to cut off the financial lifeblood of Internet gambling businesses by requiring the financial institutions and payment systems to block illegal Internet gambling transactions.

I know you're aware of this background, but let me just, one more quick paragraph here. Most illegal gambling entities operate offshore, beyond the personal jurisdiction of U.S. law enforcement, so the financial regulations authorized under this new law are critical to effective implementation of the law.

KYL: And under Section 5364 of Title 31 U.S.C., the regulations must require financial institutions to implement policies and procedures to identify and block funds related to Internet -- illegal Internet gambling.

The regulatory authority is broad to allow Treasury to adapt the procedures to the expediencies of different types of payment system.

Under the law, regulations are to be written by the Treasury Department and the Federal Reserve board in consultation with the attorney general.

At the DOJ oversight hearing on January 18, I discussed with you the need for your office to work with Treasury so these regulations can be quickly issued. And you testified that you'd already initiated discussions with Treasury. The process is moving, hopefully, and can be completed in an expeditious manner.

On March 15 I sent to you and Secretary Paulson a letter signed by Judiciary Committee members Specter, Cornyn, Sessions and Brownback noting time was of the essence and urging the regulations provide financial institutions with a periodically updated list of gambling operations to whom transactions should be blocked.

And earlier this month, I reiterated that same concern for that list with you.

Just one quick prelude to the trigger that I'll pull here on my three or four questions: Both people from the Department of Justice and the Department of State have noted that a major concern that the department has about online gambling is that Internet gambling businesses provide criminals with an easy and excellent vehicle for money laundering. That was testimony of your deputy assistant attorney general, the criminal division, Mr. Malcolm.

And from the State Department, just quoting two lines, "Internet gambling is particularly well suited for the laying and integration stages of money laundering. Internet gambling operations are in essence the functional equivalent of wholly unregulated offshore banks, with a better account serving as bank accounts for account holders who are, in the virtual world, virtually anonymous. For these reasons, Internet gambling operations are vulnerable to be used not only for money laundering, but also for criminal activities ranging from terrorist financing to tax evasion."

Now, four quick questions.

First, would you agree with me that regulations need to be strong in this area?

GONZALES: Absolutely.

KYL: You're familiar with the March 15 letter I mentioned. The letter notes that the House Financial Services Committee report expressly states the law contemplates a mechanism whereby banks and other financial service providers will be provided with the identity of specific Internet gambling bank accounts to which payments are to be prohibited.

Does that seem reasonable to you?

GONZALES: Senator, I think -- there's some operational issues for us, quite frankly, with respect to whether or not we can develop such a -- what we're saying is, these guys are breaking the law.

GONZALES: And quite frankly, there's no amount -- what we do is we prosecute that. And so I know my staff has been consulting with your staff, trying to work through this.

Because I'm as anxious as you are to try to get these regulations working so we can do a better job of enforcing the law against these...

KYL: But providing that information, specifically, to the financial institutions would offer them certainty as to their legal obligations, and would assist them in ensuring that the law would be effectively enforced, would it not?

GONZALES: It would certainly provide more certainty. And I'm not saying it can't be done. We're trying to work through this, Senator.

And I understand -- I certainly understand your interest in this. And my staff is working as hard as we can to see if we can find a way to do this.

KYL: Well, what I'm interested in, though, since Treasury doesn't have access to the same information DOJ does, and the list of these improper sites needs to come from DOJ rather than Treasury, and the regulations are to be provided by Treasury, in consultation with the Department of Justice, whether you will agree with us that the Department of Justice should do everything it can to gather this information together and provide it to the Department of Justice -- excuse me -- Department of Treasury, not just once, but on some appropriate ongoing basis.

GONZALES: Sir, what I can commit to you is that we're going to do everything we can to make sure these regulations are strong and we get them implemented as quickly as we can.

That's what I can commit to you, sir. I know this is an important issue to you. It's an important issue to me. But we need to do it the right way. And I think we can -- I'm not saying we can't do this list. We're still looking at this very, very hard.

KYL: But if I can just conclude, Mr. Chairman, the Treasury is just about ready to issue the regulations. They need input from you.

GONZALES: They sure do. Yes, sir, I'm aware of that.

KYL: That needs to occur quickly.

GONZALES: Yes, sir.

KYL: Thank you very much, Mr. Chairman.

LEAHY: Thank you, Senator Kyl.

Mr. Attorney General, late last week, the White House spokesperson claimed an unknown number of e-mails, including those of Karl Rove, from both White House accounts and apparently those sent or received using political Republican National Committee accounts, were lost.

And Mr. Rove's attorney, in the investigation that led to Scooter Libby's conviction for lying suggested that U.S. Attorney Patrick Fitzgerald, a part of the Department of Justice, obtained all of Mr. Rove's e-mails as part of the investigation into the leak of the identity of a covert CIA operative.

If that is the case, those e-mails would be in your possession or in the possession of the Department of Justice.

What do we have to do to obtain Mr. Rove's e-mails relevant to the development and implementation of the plan to replace U.S. attorneys and the committee's investigation into that matter?

GONZALES: Senator, I was not aware that -- I didn't see that article. I wasn't aware that Mr. Fitzgerald had that information or if, in fact, the department still has that information.

So I'd have to go back and look to see what, in fact, the facts are.

LEAHY: If he does have the information, and it involves e-mails relevant to the development and implementation of the U.S. attorneys plan...

GONZALES: Senator, I believe that those -- well, I don't have the answer to that, Senator. I know that they're of interest to the committee, and obviously the department wants to be cooperative with the committee.

There may be White House equities here that need to be considered, and so...

LEAHY: We're not talking about e-mails from the president. In fact, the president doesn't use e-mail, as I understand.

Am I right?

GONZALES: As far as I know that's correct, sir.

But the fact that they may have been communications over an RNC account doesn't mean that they're not presidential records. If in fact relates to government business, and they're transmitted over an RNC account, they could nonetheless be presidential records. And so there would be a governmental interest -- a White House interest in those records.

LEAHY: These are records supposedly that were lost, though.

GONZALES: Senator, I don't know...

LEAHY: Are they there or aren't they there?

GONZALES: What I'm saying is, is if in fact they exist...

LEAHY: Well, what was -- let me ask you this. The White House Counsel's office is responsible for the establishment and oversight of these kind of internal rules, conduct.

When you served as the White House counsel, you were there four years. What was the policy and practice with regard to Karl Rove and other political operatives at the White House using Republican National Committee e-mail accounts to conduct official government business?

GONZALES: Well, of course, Senator...

LEAHY: That'd be a policy set by your office.

What was the policy?

GONZALES: Senator, there were a few people in the White House, as I recall, who had -- who use non-governmental communications equipment. That was done actually, quite frankly, for legitimate reasons in terms of not wanting to violate the Hatch Act and using government facilities for political activity that is permitted under the Hatch Act for certain individuals in the White House.

LEAHY: But how many -- but what was the policy?

Could they conduct official business on those...

GONZALES: I think the intent of the policy as I recall, Senator, is that those e-mails were to be used primarily for non-governmental purposes, but in fact -- but if there was governmental communications communicated over these non-governmental communications equipment, that there ought to be some kind of effort to preserve that communication if in fact it was a presidential record.

LEAHY: There ought to be, or was your policy that there had to be?

GONZALES: I think the policy -- I have to go back and look at -- the policy was that it should be preserved. Printed out, or somehow forwarded to a government computer.

LEAHY: Are we talking about two or three computers, or a number of computers?

GONZALES: Senator, I don't recall the number.

LEAHY: If the White House spokesperson said as many as 50 past, current White House officials had these separate RNC or other outside e-mail accounts to conduct official business, would that sound accurate?

GONZALES: Sir, I'd have no way of knowing.

LEAHY: Well, as White House counsel, did you conduct any audit or oversight of the use of non-governmental e-mails by White House personnel?

GONZALES: Senator, I don't recall there being an audit. We provided guidance, but I don't recall such an audit.

LEAHY: Is anyone investigating this issue now?

GONZALES: At the Department of Justice or at the White House?

LEAHY: Are you aware of anyone investigating this issue now?

GONZALES: Senator, from what I understand in the papers, is that I think the Counsel's Office is looking to see what happened here. I don't know if that's what you mean by an investigation.

I think there is an effort, but I haven't spoken to the Counsel's Office about this issue as to whether or not they're doing an investigation to see what happened.

LEAHY: And you're not doing any investigation from the Department of Justice?

GONZALES: Senator, I'm not aware that there is an investigation that's ongoing with respect to this issue.

LEAHY: In all likelihood, something like that would be brought to your attention, would it not?

GONZALES: Well, Senator, I'm aware of it so -- you mean an investigation? Senator, I don't know if such an issue would be brought to me. I expect the career folks to simply do their job and...

LEAHY: Well, you've been attorney general since 2005. Have you done anything to ensure that political operatives, Mr. Rove and others or his deputies, not use the Republican National Committee e-mail accounts for official government business?

GONZALES: Senator, again, that would not be necessarily illegal or criminal. The obligation...

LEAHY: Have you taken any position, official position on it?

GONZALES: As attorney general I don't believe -- I don't recall taking such a position, sir.

LEAHY: What was Monica Goodling's role in the process of evaluating U.S. attorneys and choosing U.S. attorneys for termination?

GONZALES: Senator, I don't know of everything that she did in connection with this issue. Her job at the department was senior counselor. She worked -- she was also the White House liaison. She worked on budget issues and special projects. She, in essence, supported Mr. Sampson.

Since Mr. Sampson was coordinating this effort, my assumption is, is that she coordinated Mr. Sampson's efforts in connection with this review process.

LEAHY: I noted a reporter for Newsweek, Michael Isikoff, highly respected, wrote about your testimony, notable for what it doesn't say. He observed that you never say if you talked to Harriet Miers.

LEAHY: An even more conspicuous omission is your failure to mention talks about the subject of U.S. attorneys with Karl Rove, the president's chief political adviser.

I'd asked you to include in your written statement a full and complete account of the development of the plan to replace U.S. attorneys. Have you told us all you can recall about your role and the White House role in the development of the plan to replace U.S. attorneys?

GONZALES: In terms of what I know, Senator, and not in terms of what I've since learned that's already in the documents, I suspect the committee -- members of this committee have a lot more information about what happened here.

I'm here to supplement the record by telling you what I know.

LEAHY: You've told us all you can about your role.

GONZALES: Senator, I think the written statement reflects what I recall with respect to the development of the plan. There are some conversations that are not included, that I've tried to try to inform the committee about in response to certain questions today.

LEAHY: Did the president ever tell you specifically to fire a U.S. attorney?

GONZALES: I don't recall the president ever telling me specifically to fire a United States attorney, sir.

LEAHY: See, part of my problem is we've had a number of statements about the dismissal of these eight U.S. attorneys.

I just want to know which one is the accurate one.

Your January 18th testimony? Your March 7 op-ed in USA Today? Or your March 13 press conference? Or your March 26th interview with Pete Williams on MSNBC? Or your written testimony that was submitted in advance today? Or your live testimony here today? Which one is -- which one is the one we should grab hold of and say, "This is" -- "This is the accurate statement. This is the one we can go to the bank with"?

GONZALES: Senator, again, I've not done anything intentional. And I have made misstatements. And those misstatements, those are my mistakes. And I accept responsibility for it.

If there are specific issues that you have questions about, I'm happy to try to answer your question.

PROTESTOR: Liar! Liar! Impeach!

LEAHY: It would be -- well, my time is up. I do have a lot of specific questions, simply because those statements I mentioned, each one on this subject, each one varies.

Senator Specter?

SPECTER: Thank you, Mr. Chairman.

Understandably, most of the questions today have been on the issue of the replacement of the United States attorneys.

But there are many other issues of great concern coming within the purview of the Department of Justice on this oversight hearing. And I'd like to turn to the massacre at Virginia Tech on Monday.

The Congress has acted on campus safety. In 1990, legislation was enacted, known as the Jeanie Cleary Act, after a young woman was brutally raped and murdered in Lehigh University in Pennsylvania.

And that law requires campus authorities to notify in a timely way the campus community on crimes considered to be a threat to other students or employees.

Well, we don't have a crime which was reported as to Cho Seung- Hui. But there were a number of indicators which I want to explore with you to see what might be done by way of amendments to the act or other legislation.

SPECTER: In late 2005, two female students complained, separately, that they were talked by Cho -- contacted them inappropriately, personally, online and by phone.

Campus police obtained a court order requiring Cho to be evaluated in a psychiatric facility, and he was released after an overnight study, finding him to be potentially suicidal.

Cho's work in an English class alarmed his professor. He said that Cho wrote exceedingly dark essays about death and murder. He was eventually removed from the class for his antisocial behavior.

And another professor reportedly tutored Cho, and had a signal with somebody in the room to mention the name of a specific individual if there was some threat.

Well, we obviously -- the law obviously can't reach every potential threat or identify them. But what I would ask you to do, Attorney General Gonzales, is to undertake a more detailed study as to what we know about Cho Seung-Hui, and to see if there is any ambit that law enforcement could act on.

One thought comes to me, when two women reported that he stalked them, they could have been compelled to come forward. The state, the prosecutor has the authority to subpoena witnesses. It is a crime against the commonwealth, against the state, not just the individuals -- so that that might have been undertaken to give more of a background for some action.

But to the extent that we can find some way to deal with these signals, it would be very useful. The public ought to -- we ought to be doing what we can to reassure the public that we will look at the facets of what has happened here.

SPECTER: The president had a town hall meeting after the Amish incident on October 10 of last year in Lancaster, Pennsylvania, where there was talk about a clearinghouse that could be set up by the National Association of Sheriffs.

You were at the meeting, along with the secretary of education. Has anything been done on that, looking to identify this kind of aberrant, unusual behavior which might mark or give some insights into people who would be at risk?

We talk often about at-risk youth, trying to give them mentors. Has anything been done on that report on the sheriffs' clearinghouse?

GONZALES: Senator, with respect to the specific conference, one of the things that we focus primarily on at the Department of Justice was to ensure the development of strong relationships with the state and local police, and the school...

SPECTER: Would you deal with my question before you go to some other subject?

GONZALES: The -- I'm not aware that there's been any effort, Senator. That doesn't mean that there hasn't been with respect to this issue of...

SPECTER: Well, would you check that out and get back to us?

GONZALES: Yes, sir.

SPECTER: There are a couple of other subjects I want to take up with you.

The national securities letters have been misused flagrantly by the FBI. We had a very rugged session with FBI Director Mueller where we found that, in structuring the Patriot Act, we gave law enforcement additional powers. But we were very careful to put restraints on that.

But those national security letters were misused. They were used under limited procedures where exigent -- that is, emergency -- circumstances misused. You're supposed to have documents to follow up.

What have you done, Mr. Attorney General, to act -- to see to it that those problems are corrected?

GONZALES: Senator, I've spoken with the director several times about this. I was very upset about this. I'm going to have to...

SPECTER: You've spoken to him, upset about it. But what did you do, specifically?

GONZALES: I asked the national security division and our privacy officer to work with the FBI in trying to find out what happened here.

SPECTER: Wait a minute, wait a minute. We know what happened. They misused the letters.

GONZALES: They did, sir. We're trying to...

SPECTER: The question is: What corrective action have you taken?

GONZALES: Senator, we're involved in the oversight and auditing of field offices. And moving forward, we're going to be doing field office sites, 15 a year, so that people -- so we have a better idea of what is ongoing.

I think one of the things...

SPECTER: Attorney General Gonzales, I want to take up one more subject. And I've got very limited time.

What I'd like you to do on that subject is tell us what you as attorney general have done. You have responsibility over the FBI. And we know what Director Mueller has done. And this committee would be interested in knowing specifically what you have done in terms of your oversight to see to it that the FBI complies with the law.

GONZALES: I'd be happy to, Senator.

SPECTER: Let me take one other subject up very briefly.

You wrote to Senator Leahy and me on January 17th of this year concerning the Foreign Intelligence Surveillance Court and the terrorist surveillance program, writing to us that, quote, "Authorizing the government to target for collection of international communications in or out of the United States has now been given to the FISA Court, which would have to be proceeded, where there's probably cause..." -- that's the regular proceeding -- "...so that the president has discontinued the terrorist surveillance program."

Is that correct, that program has been discontinued...

GONZALES: That is correct.

SPECTER: ... in deference to sending all these cases before the court?

GONZALES: That is correct, sir.

SPECTER: OK. We don't have time to go into this in any detail, and it may be something that you can't talk about in an open session, but I would like to know the specifics and details on what is done to provide probable cause to the FISA Court in light of the tremendous number of interceptions involved here, interceptions from the U.S. going out or supposedly in a smaller number. But I'd like the information on that.

And more specifically, on the quality of the factors required to establish probable cause on the communications coming from outside the United States in.

And the final question on that subject for the moment is, in the light of the change in the approach, what is the need for the legislation which you have submitted last Friday, April 13th?

If you'd provide those responses in writing, we'd appreciate it.

GONZALES: Yes, sir.

SPECTER: Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Specter.

Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

I want to take you back once again, Mr. Attorney General. I may be very slow. But I don't understand how this list was compiled. The list was essentially 10 percent of the entire attorney general staff.

Kyle Sampson, your former chief of staff -- I'm going to talk about the senior so-called leadership of the department -- and the person you said you delegated this task to testified that he didn't put people on the list. He said, quote, "It wasn't like that. It wasn't that I wanted names on the list. I was the aggregator." That's page 184 of his transcript.

Mike Battle, director of the Executive Office of the United States Attorneys, said, "I had no input. Nobody asked me for my input." That's the interview, page 82.

Bill Mercer, acting associate attorney general and number three at DOJ, said, "I didn't understand there was a list. I didn't keep a list. It was just that any time I had a particular concern, I made that known to different people."

And you testified this morning that you didn't know the reasons U.S. attorneys were put on the list until after you decided to fire them.

I'm very interested -- and I'd like to send down to you the plan, three pages, that was distributed at the meeting on November 27, and ask you to take a look at it.

GONZALES: Thank you, Senator.

Let me respond to a couple of things that you said. First of all, I haven't read the transcript for Mr. Battle.

FEINSTEIN: Well, it's pretty accurate. And I gave you the pages. So your staff can check it out.

GONZALES: Thank you.

I don't know that I testified that I didn't know the reasons when I made the decision. I recall knowing reasons as to five, but I don't recall remembering the reason as to two.

FEINSTEIN: OK. Let's go on.

If you could look at this, and I think this is one of the -- this is a small thing. But apparently this three-page plan was distributed at that meeting.

FEINSTEIN: Do you recall seeing it?

GONZALES: Senator, I don't recall the meeting. I don't recall seeing this document. But I have no reason to doubt that this was the document, but...

FEINSTEIN: OK. Well, let me give you one point of -- and this is just a minor point of irritation: senator calls. And the Republican senators gets calls. The Democratic senators, where U.S. attorneys are being fired, the political lead gets the call, whatever that is.

I think, you know, it's senators that confirm. It's senators that should have the knowledge, not necessarily the political lead.

And if you would go to step three, on page two, it's entitled, "Prepare to withstand political upheaval."

And it goes on to say: U.S. attorneys desiring to save their jobs likely will make efforts to preserve themselves in office. And then: This is what people should say.

And on the question of who decided, the talking point is, the administration made the determination to seek the resignations, not any specific person at the White House or the Department of Justice.

And to this time, we do not know who actually selected the people to be put on the list.

GONZALES: Senator...

FEINSTEIN: I would like to know who selected the individuals that were on that list.

GONZALES: Senator...

FEINSTEIN: Somebody had to. A human being had to.

GONZALES: Senator, I'm not going to characterize Mr. Sampson's testimony. Let me tell you what I understood, and what I expected, was that Mr. Sampson would speak with the senior leadership in the department, people that knew about the performance of United States attorneys, and that he would come to me with a recommendation, a consensus recommendation, including his views.

That is what I understood. And that's what I understood was coming to me. Because Mr. Sampson was...

FEINSTEIN: But Mr. Sampson testified he didn't; he was just the aggregate.

GONZALES: No, and I'm not saying -- that -- if that's what he testified, I'm sure that's his perception of his role.

What I'm testifying today is, what I viewed Mr. Sampson's role was, was to get information but to present to me a recommendation that also included his own.

And the reason that was important, not as important as others, like the deputy attorney general, but Mr. Sampson had been involved, as (ph) presidential personnel, in filling senior leadership positions at the Department of Justice, the top legal positions at other agencies.

And so he had experience in making personnel decisions.

FEINSTEIN: All right. I don't want to -- I want to ask other questions. But perhaps you can understand that this has become a serious matter.

And seven out of the eight were involved in public prosecutions, public corruption prosecutions. And yet nobody knows who selected them for this unusual thing, to this very moment.

FEINSTEIN: Now, I'd like to go on with something else.

From documents and interview, we know the following: The White House was involved in the removal of Bud Cummins. Karl Rove called you and asked about three districts: Milwaukee, Philadelphia and Albuquerque.

GONZALES: Senator, I don't recall whether he called or if there was a visit. It may have been a call.


You got a call from the president about New Mexico in the fall of '06.

GONZALES: Senator, I think that was a conversation. I don't think it was a phone call.

FEINSTEIN: OK -- conversation, thank you.

And Harriet Miers discussed whether to remove Deborah Yang from Los Angeles. Now, she resigned so she was not part of this.

But given all these inquiries that we know about, how could you say just three weeks ago that the White House did not play a role in adding or taking off names?

GONZALES: Well, Senator, the fact that there may have been a conversation with the president indicating a concern about election fraud in a particular issue, in my mind I never would have equated that with the process, this review process that was ongoing with respect to -- that Mr. Sampson was coordinating.


But then -- now, let's continue. This is why this is so strange.

When Mr. McNulty came and briefed us in the Judiciary room on the second floor, he mentioned the reasons were performance. And then we began to ask to see the EARS reports that Senator Kennedy referred to this morning.

And I believe we've all taken a look at them. And we see stellar professional performance reports. We pick up USA Today and we see a ranking that they did placed seven of them in the top 10 U.S. attorneys in the United States.

And I have a very hard time with your telling me to this day you don't know who suggested that each of these seven people on that December 7 list -- nobody knows how they got there.

GONZALES: Well, Senator, first of all, I don't know -- the USA ranking, I don't know where that comes from and what it's based on.

But, Senator, you -- the committee, I'm assuming, I'm presuming has interviewed the people involved in this process and can ask that question. I would like to know. I would like to ask that question. But out of respect for this investigation, I have not done so.

The only thing I can do today is to give you the information that I know, the truth as I recall it.

GONZALES: And that's what I'm trying to do here today, is to tell you that I received the recommendation, what I presumed was that it -- most importantly, what I cared about, that this reflect the recommendation of the deputy attorney general. That was the most important thing.

FEINSTEIN: But if I were you, I would want to know who selected this individual. And what was their thinking? Why did they put that individual on this list?

Everybody knew from the plan that it was going to be heavy going, that there were going to be problems.

It would just seem to me that you would want to know these things.

GONZALES: Senator, no question...

FEINSTEIN: When you talk about sort of an amorphous senior leadership, people think of grey-haired, very wise men making these decisions. In fact, they're very young and sometimes very ideological people.

GONZALES: Senator, well, the...

FEINSTEIN: Wouldn't you want to know who's making the decision?

Because, when Mike Battle testified to the staff of what the response was when he called these U.S. attorneys, it was a shock out of the blue. It was a shot to the gut. They had thought they did very well. They had not been told there were problems.

And they were called and they were told, you must leave.

GONZALES: Senator, I've already -- I've already testified that, clearly, as I look back on it now, the process would have been much more rigorous. And there would have been some discussion, face-to- face, with either myself or the deputy attorney general.

You mentioned something that reminds me the discussion back and forth between you and -- involving you and Senator Schumer about Carol Lam. I want to make sure that I'm clear about this.

And that is, I believe, based upon my review of the documents, that Ms. Lam knew that there were concerns or certainly there was an interest in her performance with respect to immigration prosecutions.

I don't know whether or not Ms. Lam knew that the Department of Justice had those specific concerns or that if things didn't change that she might lose her job. I wanted to make sure that you understand that.

FEINSTEIN: Oh, but, let me -- I understand this, but let me tell you, we all get concerns, all the time. But if I were employed by Justice, I would be curious as to what my bosses think, not the flack that I may or may not be getting from other places. Because the flack to some extent comes with the territory.

GONZALES: Senator, I expected that my concerns about her immigration numbers, prosecution numbers and her gun prosecution numbers would be communicated to Ms. Lam. That's what I understood...

FEINSTEIN: But two months before she was fired, in a letter to me, Bill Moschella, Will Moschella, said everything was fine with her immigration numbers.

GONZALES: Senator, I believe...

FEINSTEIN: She has told us she was never contacted by the department about immigration.

GONZALES: Senator, I...

FEINSTEIN: My time is up.

GONZALES: Thank you.

LEAHY: Did you want to respond to that question?

GONZALES: That's fine, sir.

LEAHY: I'd certainly allow you to, if you want to.

GONZALES: Thank you, sir.

LEAHY: Senator Hatch?

HATCH: Well, thank you, Mr. Chairman.

I think we all will agree, I think you've agreed, that this was poorly handled.


HATCH: I contrast that with the years of service you've given, not only at the White House, but at the Justice Department, and all of the really good things that you've been able to do.

I mean, how many times do you have to be flagellated over that?

Let me give you another illustration. With regard to public prosecutions, do the named U.S. attorneys always try those cases?

GONZALES: No, sir.

HATCH: Very seldom.

GONZALES: In fact, in most cases they're tried by the career professional with experience.

HATCH: By professional staff, right?

GONZALES: That is correct, sir.

HATCH: They're tried by professional staff. So if a U.S. attorney leaves, that case continues on, right?

GONZALES: The institution is built to withstand change in the leadership positions. That's the way it should be...


HATCH: Am I right, if the U.S. attorney leaves that case continues and it's well handled?

GONZALES: That's true.

HATCH: And that's without interference by the Department of Justice. Is that correct?

GONZALES: We have every expectation that the case will continue and move forward.

HATCH: And there's no indication -- well, let me say this as well. I think it's important to say this, that U.S. attorneys serve, as everybody here has admitted, at the pleasure of the president. They don't serve at the pleasure of the United States Senate. They're confirmed by us, but they serve at the pleasure of the Senate. And you serve at the pleasure of the Senate -- or the president, too.


HATCH: You're confirmed by us. We have a role, but that's not -- but our role is not that they serve at our pleasure.

As I've said, I believe there are two legitimate issues in the U.S. attorney controversy. First, were any of them removed for an improper reason? Second, did any administration officials knowingly mislead or lie to Congress or the public?

After three months of hearings, all kinds of interviews, and thousands upon thousands of pages of documents, the evidence shows that the answer to both of those questions is a resounding no.

Now, continuing past the point of answering those questions, it appears motivated more by partisan profit taking than proper oversight. And because some have not been able to -- they have not been able to prove either improper interference with an ongoing case or investigation or a knowing misleading of the Congress about how these U.S. attorneys were removed, some now want to shift gears and ask why some of the U.S. attorneys were not removed, as you saw this morning.

HATCH: Well, crossing this line is wrong, and causing to question not decisions made about a few U.S. attorneys in the past, but decisions made by many U.S. attorneys in the present and future.

Now, as you said in your statement, you've recently met with U.S. attorneys all over the country, about 70 of them, if I recall correctly.

GONZALES: Over 70 -- yes, sir.

HATCH: Over 70.

How would this type of approach impact them, you know, why they're not removed? And their decisions, their cases, their work -- to go down this road will raise suspicion, innuendo and doubt about their service -- I mean, that bothers me just a wee bit, too.

GONZALES: Senator, the perception is something that I'm very, very concerned about and something that I'm committed to try to address.

HATCH: Well, in your op-ed column published last Sunday in The Washington Post and your written statement today, you had described how you have asked the Office of Professional Responsibility separately to investigate this U.S. attorney controversy.

Now, many Americans might not be familiar with the Office of Professional Responsibility, OPR, in the Justice Department.

If you would, please describe that office in general, and then focus on what you've asked the office to investigate and what you believe its work will contribute regarding this controversy.

GONZALES: Senator, it is an office headed by a career professional. The role of the office is to ensure that the Department of Justice lawyers meet their professional obligations as lawyers, have met their ethical obligations in providing legal advice as lawyers. And that's the role of the office.

And I thought it was important because of allegations of wrongdoing by lawyers at the department for the Office of Professional Responsibility to look into this matter. Because I wanted to reassure...

HATCH: That's no small request, right?

GONZALES: Well, Senator, I think it's a serious issue when you're asking the Office of Professional Responsibility to look at the conduct of a lawyer.

HATCH: Once you asked them to do that it's in their hands, not yours, right?

GONZALES: It is certainly within their hands.

And let me just add that I have recused myself, in order to avoid appearances of impropriety. I've recused myself of oversight of that investigation or the investigation of the Office of Inspector General, in relation to this matter.

HATCH: Well, I think we can all agree this was poorly handled.

GONZALES: Yes, sir.

HATCH: But you delegated this authority to others to handle, who you had faith in and trust.

GONZALES: Yes, sir.


HATCH: But you've taken responsibility for...

GONZALES: I accept full responsibility for this, Senator. I'm head of the department. I made the decision to delegate this process. I assumed the process would be better, and it wasn't. And I accept responsibility for this.

But at the end of the day, I know that I did not do anything improper. And based on what I know and have seen, I don't think anyone made...

HATCH: So that's...

GONZALES: ... any recommendations to me based on improper motives.

HATCH: That's one reason why, this morning, I brought out how many hundreds of -- more than 100,000 people you supervise. You're constantly at Cabinet meetings or other meetings at the White House.

Why, you're even called up here on a regular basis, although it's been infrequent, but nevertheless, you have to go not just to the Senate but to the House.

You have constant phone calls from us up here that you answer.

GONZALES: Senator, there are a lot of responsibilities as attorney general. But my job is also to be responsible for what happens at the department. And I accept responsibility for what happens.

HATCH: But my point is, is that you're accepting responsibility, but you have a lot of other responsibilities that you've been carrying out effectively and well.

GONZALES: I believe so.

HATCH: That can't just be tossed aside, like you're not doing the job down there, which is, kind of, the implication that comes out of this every once in a while.

Let's all admit this was poorly handled. It could have been better handled. If you had had more hands on, on this, maybe we wouldn't be in this position today.

On the other hand, with 100,000-plus employees, it's easy to see why something sometimes slips by. And this one certainly did.

And I don't -- if there was any evidence that you were interfering with an ongoing investigation or case, or that you knowingly misled this Congress, that's another matter.

But there isn't, and I just want to point that out and say, you know, you've taken a lot of lumps here, but you've also handled yourself well, too. And I just wanted to make sure that there's a little more even-handedness about this.

Thank you, Mr. Chairman.

LEAHY: Thank you. I just want to make sure I fully understand one of your questions. Were you suggesting that OPR, Office of Professional Responsibility, operates outside of political interference?

LEAHY: Was that what you were saying?

GONZALES: Senator, their job is to provide an evaluation about the professional performance of the attorneys within the Department of Justice.

LEAHY: Do -- are they ever subjected to political -- have you ever been aware of them being subjected to political influence?

GONZALES: Senator, I'm not sure I can answer that. I think as a general matter I'm not aware of that. I'm not sure I understand what you mean by political influence.

LEAHY: Well, I'm thinking about the time the OPR was asked to look into the question of warrantless wiretapping by NSA, something that eventually turned out that they shouldn't have done. And they were told and given a political order, look no further.

GONZALES: Sir, I don't know if I would characterize the political -- I recommended that the Office of Professional Responsibility -- I recommended to the president that the Office of Professional Responsibility be read into the program so they could conduct an evaluation of the performance of lawyers within the Department of Justice.

And the decision was made by the president that that would not be the right thing to do.

And that's what happened in that particular case.

LEAHY: So I just didn't want to leave the impression that they operate unfettered by political influence, in that case in a very, very serious matter involving this nation, involving our laws, involving the FISA Court -- they weren't interfered with.

GONZALES: Senator, can I just make one comment?

LEAHY: Sure, of course. Of course.

GONZALES: I think it's important that the American people understand that the Office of Inspector General has been read into the program. And they're certainly looking into the role of the FBI in connection with this program.

CARDIN: Thank you.

Mr. Attorney General, I want to make sure the record's clear about your knowledge of what Monica Goodling might be able to contribute to -- her input or what she knows on the process with the dismissal of the U.S. attorneys. So I just want to give you that opportunity to make sure our record is complete about your knowledge in that regard.

GONZALES: Senator, I'm not sure I have anything to add about Ms. Goodling's role. I don't have any specific recollection about what else she might have done.

Certainly, after the fact, after the decision, I'm aware that she was involved with respect to preparation of testimony and things of that nature. But in connection of her involvement in the role of this -- Let me just say this. There is in the documents, as I recall seeing them after the fact, obviously she's involved in communicating with the White House with respect to certain individuals. And she is involved in other kinds of communications.

GONZALES: I don't want to minimize her role. But I certainly -- she was not one of the persons I was relying primarily on with respect her to a recommendation to me about this decision.

I relied primarily -- what I would be relying primarily on the recommendation of the deputy attorney general, who every one of these U.S. attorneys reported to and was a former colleague.

I would be very interested -- it was my understanding, sir, and my hope that Mr. Sampson would consult also with the acting associate attorney general, also the sitting United States attorneys (ph)...

CARDIN: I just want to make sure I got Monica Goodling -- your recollection of whether there's anything more that should be in the record from your testimony in regards to her.

GONZALES: Sir, I don't have any independent knowledge beyond what's reflected in the documents.

CARDIN: I want to go to the issue of voter intimidation, voter fraud.

In a couple of the districts, voter fraud was an issue involved in the dismissal of the U.S. attorneys. It's come up several times.

You and I have talked about voter intimidation. I'll just tell you in my state of Maryland, in one precinct in Prince George's County, Maryland, there are more eligible voters who came out to vote and did not vote because the lines were so long that they just didn't have the time to wait a couple hours to vote. Then all the people in Maryland who may have cast a vote who were not eligible to vote.

I mention that because there seems to be a growing activities of voter intimidation to try to affect minority voters around the country. We saw that in half a dozen states by specific examples in the last election.

Now, you have indicated that the lack of energy on voter fraud was involved in evaluation of a couple U.S. attorneys. I didn't see any evaluations at all about U.S. attorneys being aggressive in dealing with voter intimidation.

CARDIN: And I'm just wondering where the priority of the office will be.

GONZALES: Senator, I think you've raised a very, very good point.

First of all, with respect to voter fraud, generally, as someone who grew up in a poor neighborhood, the one day we were equal to everyone else was on Election Day. And so, I really appreciate how important the right to vote is.

Voter fraud to me means you're stealing somebody's vote. And so, I take this very, very seriously.

Having said that, in enforcing or prosecuting voter fraud, we need to be careful that we don't discourage people or intimidate people from participating on Election Day.

And I think it's important to send a strong signal that if you're going to do an investigation, be sensitive to the fact that you don't want to create -- have a chilling effect or create some kind of cloud and discourage people from participating.

And so, that, to me, is very, very important.

We have guidance about that, doing those kind of investigations near an election. Because it's important to enforce the law; it's important to pursue voter fraud, but let's be sensitive about the effect it has on, particularly, minority participation.

CARDIN: I agree with that. And I just hope that you will take a look at the Obama bill that we have pending before this committee.

All of the information I have seen -- and I agree with you on voter fraud. Voter fraud should be prosecuted. Somebody tries to vote who shouldn't be voting, absolutely they should be prosecuted.

But the amount of voter fraud, from what has been seen in those areas where those studies have been done, is minuscule compared to those who are eligible to vote that have been for one reason or another unable to cast their vote.

And there has been an increasing amount of activity, whether it be voting machines that don't work in minority areas, as happened in Maryland, or whether it is literature that's handed out that's blatantly wrong, intimidating voters that they may be arrested if they try to vote in minority communities, or giving the wrong Election Day, or giving wrong information about political endorsements that are racially motivated -- that, to me, has a very serious effect on minority participation in voting and needs to be a priority.

So I am somewhat concerned that as you're looking at the aggressiveness of the U.S. attorneys office to carry out a policy on making sure that everyone's vote is properly counted, that we have balance here in making sure that we give the attorney general the tools that you need to counter voter intimidation, and that we work together to really make sure that every vote can count in this country -- and we haven't reached that yet, so we need to have that balance.

GONZALES: Senator, you and I have spoken about this. I believe that you met with the head of the Civil Rights Division. This is something that's important to me, personally, and so it's something I would be anxious to work with you about. I think there needs to be a balance.

CARDIN: Thank you.

Mr. Chairman, I yield back the balance of my time.

LEAHY: Thank you.

And I -- we told the attorney general before Senator Cardin asked questions we were going to take a 10-minute break, and that was my mistake that we didn't. We'll stand in recess for 10 minutes.

GONZALES: Thank you, Mr. Chairman.


LEAHY: I would note that we have a statement from Senator Biden for the record, which I will put in the record.

Senator Whitehouse has asked for a question. I think Senator Schumer may have further. Unless Senator Specter has something further. I will not. The attorney general has had a long day here, and I'd hope that this would soon wrap this up. And I mention this also for the press and others so they'll know where we are. And I've discussed it already with the attorney general.

Senator Whitehouse?

WHITEHOUSE: Thank you, Mr. Chairman.

Mr. Chairman, with your permission, may I give two documents to the witness?

LEAHY: Yes. And we won't start the clock until he's had a chance to...

WHITEHOUSE: Great. Thank you.

We'll circulate them to anybody who's here.

Back to structure again, Attorney General Gonzales. I assume that we can agree with the proposition that in the enforcement of the laws the Department of Justice should be independent.

GONZALES: Yes, sir.

WHITEHOUSE: Can we also agree that one of the institutions of government that the Department of Justice needs to be independent from in the enforcement of the law is the White House?

GONZALES: No question about it, Senator. If you're talking about prosecuting someone in the White House, yes, we should be independent from them when we're making those kind of decisions.

WHITEHOUSE: And, indeed, over long history there have been concerns about influence from the White House to the Department of Justice, and people, indeed members of this committee, have expressed concern about the White House-Justice connection over many years. Is that not also correct?

GONZALES: I think that's a legitimate concern. I think that's very important. I think it's one of the reasons, for example, that Attorney General Ashcroft recused himself in connection with the Plame investigation.

WHITEHOUSE: The documents that I have given you are two letters. One is from Attorney General Reno to Lloyd Cutler, the special counsel of the president, dated September 29th, 1994. It lays out the policy for contacts between the White House and the Department of Justice in the Clinton administration.

And to give credit where credit is due, it's my understanding that the distinguished Senator Hatch, who was then the chairman of this committee, had substantial interest in this and viewed it as a significant area of oversight. And I want to commend him for that.

And what it does -- the language is behind me -- it says that, with regard to initial contacts involving criminal or civil matters, they should only involve the White House counsel or deputy counsel, or the president or vice president, and the attorney general or deputy or associate attorney general, period.

The more recent memorandum, the other document that you have in front of you is from April 15th, 2002. It represents the policy of the Bush administration regarding White House-Department of Justice contacts.

And there, in the highlighted part on the front, it says that these contacts regarding pending criminal investigations and criminal cases should take place only between the office of the deputy attorney general and the office of the counsel to the president.

And then, if you flip back to the very last page, there's sort of an exemption paragraph that exempts further the president, the vice president, the counsel to the president, national security and Homeland Security officials, staff members of the office of the attorney general as so designated, and staff of the office of the president, the office of the vice president, the office of the counsel to the president, the National Security Council and the office of Homeland Security.

So I asked my staff to take a look at what the difference was between those two in effect, and if you could.

This is in effect during the previous administration. This is the Clinton protocol. And there were four people -- the president, the vice president, the deputy White House counsel and the White House counsel -- who could participate in these kind of discussions about cases and matters and initiate them with the Department of Justice.

And on the Department of Justice side, the only people who were qualified to engage in those discussions were the attorney general, the deputy attorney general and the associate attorney general.

So they had narrowed very carefully the field of people who could have these discussions, which I think is a very important safeguard -- to narrow that porthole, to police it. It's almost like there's an airlock there for those communications.

Now, here's the result that I asked my staff to put together, if you count all the people who are eligible under the new program.

That, to me -- your staff can check on exactly how accurately we've done it -- but there are, I want to say, five -- what were the numbers?


WHITEHOUSE: 417 folks in the White House who are eligible to have these contacts and...


WHITEHOUSE: About 30-some in the Department of Justice.

And, again from a structural point of view, my question to you is, when over years this issue of White House to Department of Justice contacts has become so significant when, you know, even on the Republican side of the Judiciary Committee there's intense concern about this over the years.

And it's been narrowed down to a fine porthole like this. You were the White House counsel at the time. What possible interest in the administration of justice is there to kick the porthole so wide open that this many people now can engage directly about criminal cases and matters, compared to before?

GONZALES: Senator, I think you've raised a good point here, one that I was concerned about at the counsel's office and I remain concerned as attorney general, in terms of making sure that communications from the White House and the Department of Justice remain in the appropriate channels.

I do recall being concerned about that as White House counsel.

WHITEHOUSE: Quite a pronounced change, isn't it?

GONZALES: Well, it is a pronounced change. However, it's my understanding of the policy -- again, this is DOJ policy that occurred April 15, 2002 -- was that communications with respect to individuals at the National Security Council would not be with respect to particular cases, but with respect...

WHITEHOUSE: This is national security aside. That's (inaudible). This is not national security. This is criminal cases and civil cases, initial contacts between the White House and the Department of Justice.

GONZALES: Senator, let me say this. I am not aware that there are initial contacts between the White House and the Department of Justice as an initial matter with respect to specific criminal cases.

Or if there are -- let me put it this way: I don't think they should be. I think it's very, very important -- I agree with you. It is important to try to limit the communications about specific criminal cases between the counsel's office and the Department of Justice.

WHITEHOUSE: But when I see the rules opened this much, it makes me wonder to what extent this safeguard is considered significant in this administration.

WHITEHOUSE: And then we hear stories like we've heard of United States Attorney McKay, reporting that when he went to the White House to be interviewed, he was told by White House Counsel Harriet Miers that he had -- and this was the word he used, in quotes -- "mishandled the voter fraud investigation in the recent election."

Now, I've met Harriet Miers. She strikes me as a very careful, intelligent, thoughtful lawyer. She wouldn't throw around a word like "mishandled," I don't think, which implies a very significant degree of evaluation.

And it seems to me that one or two things is true about that conversation. Either she had no idea what she was talking about and she misused that term, or she had some idea of what the evidence was in the voter fraud case in McKay's district that did not go forward.

And what I'd like to know is: Do you know which one it was?

And if it was the latter, how on earth did she get evidence regarding a Department of Justice case sufficient to form the professional opinion that the United States attorney had mishandled that case?

GONZALES: Senator, I am not familiar with the conversation that occurred between Mr. McKay and Ms. Miers. I, like you...

WHITEHOUSE: Have you seen the story on it, though?

GONZALES: I'm aware of the reports, but sometimes...

WHITEHOUSE: Doesn't that send up a big, red flag?

GONZALES: Sometimes stories are wrong. And the fact that that she also may have been aware of the reports, knowing that this was an issue in this district, that she many have inquired about, well, what happened here; is there something to worry about -- without having any specific knowledge about the underlying facts of the case.

But I don't know. I'm just...

WHITEHOUSE: Has there been any effort to run down what happened, that caused a White House counsel to reach an evaluative opinion about an ongoing prosecution, or even then, a closed prosecution, I gather, just by way of safeguarding how information is traveling back and forth across this now wide-open screen?

GONZALES: Well, I think the safeguards that you're referring to, I think, are very, very important. I'm not sure that there would have been a prosecution relating to the absence of a prosecution.

To answer your question, I'm not aware of any going back and looking at what happened here.

Again, I don't know if what the reports are even stating are even accurate. But I, like you, am concerned about the level of contacts in ensuring that the communications from the White House and the Department of Justice occur at the appropriate -- within the appropriate channels.

WHITEHOUSE: Mr. Chairman, I know I'm over my time, but if I could ask a couple of quick questions about OPR and OIG.

LEAHY: I think this is -- I think this is significant. I'm willing to not take the other questions I was going to ask.

I find the chart astounding. It goes beyond anything I've seen in 32 years here. Please go ahead and finish your questions.

WHITEHOUSE: OPR and OIG are both investigating this matter.

GONZALES: Yes, sir.

WHITEHOUSE: OPR reports are ordinarily not public. OIG reports ordinarily are.

Can we be assured that the results of the OPR/OIG investigation will in fact be made public?

GONZALES: Senator, I think -- as I indicated in response to your earlier question, that I am recused from the oversight of these two investigations. And so, as a technical matter, I'm not sure that's going to be a decision for me to make, quite frankly.

And Mr. McNulty, the deputy attorney general -- I advised to recuse himself. And so Paul...

WHITEHOUSE: Who do you talk to?

GONZALES: Paul Clement, the solicitor general.

WHITEHOUSE: When you look at the record -- you've asked us several times to look at the record of the department -- of public corruption prosecutions.

Would you object to us asking the Office of the Inspector General to look at the record of public corruption prosecutions and give us a confidential report, stripped of any sort of tell-tale information, so that we can actually test that proposition that you've invited us to look at?

GONZALES: Senator, I don't know whether or not that is really -- as a general matter, as to whether or not lawyers have discharged their professional responsibilities is not a matter within the purview of the Office of Inspector General. But I believe it falls in the purview of the Office of Professional Responsibility.

I'd be happy to go back -- again, I'm not even sure I'm recused from making that decision -- but I understand your request and we'll see..

WHITEHOUSE: I think it's actually properly OIG.

And my last point is that it was originally your choice to refer this matter to the Office of Professional Responsibility, correct?

GONZALES: Yes, sir.

WHITEHOUSE: Now, a suspicious mind would say, "Well, wait a minute. OPR never makes a report." And, more than that, OPR is limited to evaluating the conduct of attorneys within the Department of Justice when they're acting as attorneys.

WHITEHOUSE: It does not evaluate their administrative actions. It does not evaluate whether they've subjected themselves to political influence.

And my question to you is: Who, in this entire process that led to the termination of the U.S. attorneys, was, at any point in this, acting as a lawyer, and not administratively?

GONZALES: You raise a good question. And I want to be careful about what I say here, because my recollection may be a little fuzzy.

But I believe that in talking with our acting chief of staff, Chuck Rosenberg, I spoke with him about the possibility of doing some kind of joint investigation. And so, I think the Office of Inspector General is going to be going to be looking at many of the issues that you're concerned about.

I'm told that the Office of Inspector General had, on their own, decided that they were going to do an investigation, and, therefore, I really can't claim and shouldn't claim credit...

WHITEHOUSE: It's a good thing.

GONZALES: ... which is fine.

But I guess the point I'm making is I believe that these issues -- these issues in terms of jurisdiction and who's going to look at what has been resolved between those two offices.

And my understanding is they're going to pretty well cover the waterfront with respect to decisions about these eight U.S. attorneys, whether or not anyone intentionally tried to mislead Congress. And so, I think these issues are being looked at by both these offices.

WHITEHOUSE: I guess my final question to you, then, is: In choosing OPR as the place that you wish to refer this investigation, did you take into account that OPR does not ordinarily make their findings public and that they are ordinarily limited to the conduct of lawyers in their conduct as lawyers, the things that might subject them to bar disciplinary activity, and there's really no relation between anybody's conduct here that's being questioned and their conduct as lawyers?

Typical misconduct, this is your thing -- Brady violations, Giglio violations, Federal Rule of Criminal Procedure 16 violations, improper conduct before a grand jury, improper coercion or intimidation of witnesses, improper use of peremptory strikes, improper questioning of witnesses, introduction of evidence, misrepresentation as to court, improper opening and closing arguments, failure to diligently represent the U.S. and its government, failure to comply with court orders, scheduling orders, Hyde Amendment fees violations.

None of that has anything to do with what we're questioning today. Why OPR?

GONZALES: Senator, that's, I guess, a fair question. And I think that's the reason why I raised with our acting chief of staff is to have the Office of Inspector General also look at this.

GONZALES: But again, I can't claim and won't claim credit for asking OIG to look into this, because my understanding is they were already thinking about doing that, or they were already beginning to look at it.

I don't recall -- I don't recall making the decision about OPR, thinking about, well, this is going to be a private report to me. Because, again, on March 8, when I met with the chairman and others, I volunteered that we would turn over documents, voluntarily. I volunteered that we would make DOJ officials -- voluntarily.

And so my actions have been consistent with the principle that (inaudible) to get to the truth, and that's very important to me.

WHITEHOUSE: Well, I've long overextended my questioning. And I appreciate very much the courtesy of the chairman and the ranking member and the senator from New York, in allowing me to do so.

LEAHY: Thank you. I understand the senator from New York needs a couple minutes.

SCHUMER: That's all I need, yes.

LEAHY: Go ahead.

SCHUMER: Thank you, Mr. Chairman.

Mr. Attorney General, at the beginning of the hearing, we laid out the burden of proof for you to meet, to answer questions directly and fully, to show that you were truly in charge of the Justice Department, and most of all, to convincingly explain who, when and why the eight U.S. attorneys were fired.

You've answered "I don't know" or "I can't recall" to close to a hundred questions. You're not familiar with much of the workings of your own department. And we still don't have convincing explanations of the who, when and why, in regard to the firing of the majority of the eight U.S. attorneys.

Thus, you haven't met any of these three tests. I don't see any point in another round of questions. And I urge you to re-examine your performance and, for the good of the department and the good of the country, step down.

Mr. Chairman, I yield -- I yield my time.

LEAHY: Thank you.

GONZALES: Mr. Chairman, may I respond?

LEAHY: Of course, you may.

GONZALES: Respectfully, Senator Schumer, I think all Cabinet officials should ask themselves, every day, what's best for the department that you lead. And it's something that I ask myself every day.

I agree with you that I have the burden of proof of providing to you the reasons why I made my decision. But the burden of proof as to whether or not something improper happened here, respectfully, Senator, I think, lies upon those making the allegations.

And I've done everything I can to help you meet your burden of proof, in terms of coming up here and testifying, and making other DOJ officials available, and providing documentation.

But I think, in terms of whether or not something improper has happened here, respectfully, Senator, I think that burden lies upon you and others who are alleging that something improper happened here.

SCHUMER: Mr. Chairman, that would be true if this were a criminal trial, sir. Our standard for attorney general isn't simply "no criminal" standard. It's a much higher standard than that.

And when you answer so many questions "I don't know," "I can't recall," when major details of important issues are not at your fingertips, or even in your knowledge, and most of all, no, sir, when you fire U.S. attorneys, the burden is on you to give a full, complete and convincing explanation as to why. And people on both sides of the aisle failed to get that.

SCHUMER: So, sir, in my view, no, no, no. When you fire people who have good evaluations, who have devoted themselves to this country, the burden of proof lays on those -- on the person who did the firing, who took responsibility for the firing.

Thank you, Mr. Chairman.

LEAHY: Thank you.

Senator Specter?

SPECTER: Mr. Attorney General, we begin with the recognition of the long, arduous route you've taken, with great difficulty and accomplishment. As I said at the start, Harvard law and the state supreme court in Texas and White House counsel and attorney general of the United States.

And I think you have been as forthcoming as you could be in your testimony today. But the issue of credibility, I think your credibility has been significantly impaired because of the panorama of responses you have made, where you denied being involved in, quote, "discussions," and then your three key assistants contradicted you on that.

Where you then shifted to not having been involved in deliberations. And I went over with you the long list.

You did touch the issues as to U.S. Attorney Lam in San Diego and what would happen to U.S. Attorney Iglesias in New Mexico and what would happen to U.S. Attorney Cummins in Arkansas. And then your denial of knowing about memoranda, and you were at meetings where documents, memoranda, were distributed.

So I think inevitably there is a loss of credibility just necessarily.

You and I talked informally during the luncheon break, and you elaborated upon one of your answers where you said that when you were questioning U.S. Attorney Lam's record to stay, that it was different from what you had asked Chief of Staff Kyle...

GONZALES: Sampson.

SPECTER: ... Sampson to investigate and, in my view, there's absolutely no difference. Those are the same thing. And when you look at Ms. Lam's performance, you were involved in the deliberation, the judgment as to what would happen to her.

Now, that was difficult for me to understand how you could try to make that distinction. But I know you're doing that in good faith. But the net result is, I think, necessarily a loss of credibility. And I say that to you candidly and in a friendly way.

When you come to the issue of the request of all these U.S. attorneys to resign, I agree with the conclusions that it doesn't do any good to ask any more questions, because I think we've gone about as far as we can go with multiple rounds of questions today. And you have been a forceful witness, and you have had a lot of staying power.

But we haven't gotten really answers. And I think it's going to take a detailed analysis. I urged you to put on the record the details as to all the U.S. attorneys you asked to resign so that we could evaluate. And you have not done that. You have not done that. And I still think it would be useful if you did that as to your personal views.

But perhaps it'll be the inspector general, or perhaps it'll be the Office of Professional Responsibility, or maybe they're not the right ones to do it. Or our investigation will go forward. And we've talked to a lot of people, questioned a lot of people under oath. And we'll continue to do that to try to get the answer.

When it comes to the question as to impact on the department, Mr. Attorney General, it seems to be inevitable that there has been a morale problem with this, some of the questions has disclosed. There would be an implicit message, if not an explicit message, even an unintended message that U.S. attorneys ought to be on guard for their independence.

And I handled the prosecutor's job and know the importance of not being concerned about any collateral influence beyond the law and the facts. And I think that has to have had an impact on the department.

And for you to have said it's an overblown personnel matter, I think that can't be erased. And the clouds over a lot of these professionals can't be erased. And the worry by those who haven't been subjected to those clouds can't be erased.

Now, I'm not going to call for your resignation. I'm not going to make a recommendation on that.

SPECTER: I think there are two people who have to decide that question. You have to decide it in the first instance. And if you decide to stay on, then it's up to the president to decide. He is the appointing power.

And I've signified the concerns that I have and the impact that I think it has on the department. But I think it's beyond the purview of a senator.

I mean, senators can do whatever they like. And I'm not questioning anybody who wants to do it differently. But for myself, I want to leave it to you and the president.

Thank you, Mr. Chairman.

LEAHY: Thank you.

First off, I thank the attorney general for being here. This has not been a day that I think he wanted.

I also thank the committee members, both Republicans and Democrats, who are here. I think most of the senators took this very seriously, asked very serious questions.

You know, I can't help but think years ago -- we talk about our backgrounds. I was in law school at Georgetown, invited with a handful of young law students who were working here for the summer, here in Washington, to meet with the then-attorney general.

I thought it would be a courtesy call, in and out. The attorney general spent well over an hour with us, actually considerably longer than that. He talked about the Department of Justice, how important an arm it is of the government and how it's truly the one really independent arm of the government.

It's the attorney general of the United States, not the attorney general of the president, which is interesting, especially because of this particular attorney general.

And talked about the men and women who worked there, most of whom he had no idea what their political affiliations were and he just knew how professional they were.

LEAHY: And I remember saying afterward, to my wife, and have thought about it since, how great it would be to work there, or to be a prosecutor.

I was blessed with the opportunity to become one, for eight years.

But I thought, both when I was prosecutor -- and I know Senator Specter felt the same way -- that the independence was the most important thing. And the independence of our nation's top federal prosecutors are -- it's no small matter.

When you appeared here, Mr. Attorney General, in January 2005, for your confirmation hearing, you said, "I feel a special obligation, an additional burden, coming from the White House, to reassure career people at the department, and to reassure the American people that I'm not going to politicize the Department of Justice."

I'm afraid that both the testimony today and the evidence that we've uncovered during this investigation shows that politics have entered the Department of Justice, to an unprecedented extent.

And if left unchecked, it would become just a political arm of the White House. That is something I would oppose, whether it's a Democratic or Republican administration.

The attorney general is not White House counsel. Every president's entitled to, and should have, a White House counsel. But the attorney general's the attorney general of the United States.

And if you put partisan politics -- you have many people who have been appointed in political factions who I do not believe are competent. You have poor management. Then you add such things as the widespread abuses of national security letters, and we're -- we know it goes even beyond what we've heard.

You have the invasion of Americans' privacy, in an unprecedented fashion. Never in this country have we had such an invasion of Americans' privacies.

LEAHY: We see the inaccuracies, gross inaccuracies, in the department's FISA applications, Foreign Intelligence Surveillance Act applications.

So I say this -- saying we're going to have to continue and will continue.

I must admit that this is a day that does not make me happy at all. I can think of very few things I've presided over or been part of -- and I've been the majority or the minority half a dozen times. I cannot think of any time that I've been more concerned and more concerned for the system of criminal justice in this country.

So with that, we stand adjourned.


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