COMMENTARY:

Justice Probe Still Threatens Gonzales

Former Attorney General Alberto Gonzales will face new legal jeopardy when the Justice Department’s Inspector General issues his next report on how the Bush administration let politics influence prosecutorial judgments, says ex-U.S. Attorney David Iglesias.

That installment is expected to address the firings of nine U.S. Attorneys in 2006 and could set the stage for criminal charges against Gonzales and his former deputy, Paul McNulty, according to Iglesias, the former U.S. Attorney for New Mexico who was one of those fired in the purge.

In an interview, Iglesias said he believes Inspector General Glenn Fine will recommend that Attorney General Michael Mukasey appoint a special prosecutor to investigate Gonzales, McNulty and others for perjury, obstruction of justice and possibly other crimes related to the firings.

However, given Mukasey’s unwillingness to pursue past crimes that implicate the Bush administration, Iglesias said accountability for Gonzales and others may have to wait until a new President takes office.

For nearly a year, Fine’s IG office has been investigating whether the prosecutor firings were improper, what role Gonzales played in the firings, and if he tried to influence the congressional testimony of one of his aides.

Fine testified before Congress on Wednesday that his investigation into the hiring practices at the Justice Department discovered that senior officials used illegal political litmus tests in the hiring of professional prosecutors and judges, but Fine’s report did not implicate Gonzales.

Iglesias said, however, that doesn’t mean Gonzales is home free on his alleged role in a separate issue, the firing of the nine federal prosecutors when some resisted pressure to bring politically timed prosecutions that would undermine Democrats and help Republican in elections.

“Here’s how I think that will go down,” Iglesias said. “The IG will find enough evidence to refer the matter to a special prosecutor. There will be more than enough evidence to make that recommendation.”

Iglesias added that he also suspects that an upcoming IG report about the Justice Department’s Civil Rights division will be highly critical.

“I believe that when the rest of the report drops it will show the Civil Rights section was compromised in terms of their core historic mission, which is representing minorities,” Iglesias said. “I am hearing preliminarily those classic cases were not prosecuted, which if true is a remarkable turn of events.”

John McKay, the former U.S. Attorney for the Western District of Washington who was another one of the fired prosecutors, argued in a law review article earlier this year that if Fine determines federal laws were broken a special prosecutor should be appointed.

McKay wrote that Gonzales may have obstructed justice and that McNulty may have lied to Congress. McKay said the situation around Iglesias’s firing could lead to "criminal charges" against Gonzales and McNulty "for impeding justice" because of alleged political pressure placed on Iglesias to bring criminal charges.

In congressional testimony, Iglesias said he received telephone calls from New Mexico's Republican Sen. Pete Domenici and Rep. Heather Wilson before the 2006 elections inquiring about the timing of a possible corruption indictment against a Democratic official in the state.

Iglesias told Domenici and Wilson that he could not discuss the issue of indictments with them. A couple of weeks later, Iglesias's name was added to a list of U.S. Attorneys selected for termination.

McKay wrote that when Gonzales testified before Congress about Iglesias he said "he took multiple phone calls from Domenici concerning [Iglesias], urging that he be replaced, and has admitted that [President George W. Bush] spoke with him about the 'problems' with Iglesias.”

"Gonzales has even admitted that one of the reasons that Iglesias was fired was because Sen. Domenici had ‘lost confidence’ in Iglesias," McKay wrote. "While these allegations are troubling under any analysis, a thorough and independent investigation is necessary to determine whether criminal laws have been violated. ...

“Under the broad language of [the federal statute regarding obstruction of justice], it would be hard to imagine that 'corruptly influence' would not extend to firing of the United States Attorney in the middle of a public corruption case because he 'lost confidence' of a senator who sought to manipulate the indictments for crass political advantage."

McKay added that "McNulty also may have sought to conceal an important phone call from Sen. Domenici regarding U.S. Attorney Iglesias, instructing [then Justice Department liaison to the White House] Monica Goodling to delete reference to that call from his Senate testimony."

McKay said the firing of Carol Lam, the U.S Attorney for the Southern District of California, is just as troubling because it took place while Lam was "supervising the highest profile public corruption prosecution in America," that of Randy "Duke" Cunningham, Republican congressman from San Diego.

Cunningham pleaded guilty in March 2006 to mail and wire fraud and conspiracy to commit bribery and is serving an eight-year federal prison term. At the time of Cunningham's sentencing, Lam said the investigation was continuing "with respect to other co-conspirators."

Those co-conspirators included Kyle "Dusty" Foggo, executive director of the CIA who resigned in early May 2006 a few days before search warrants were executed on his residence.

McKay suggested that Lam's dogged pursuit of Cunningham's co-conspirators in the spring of 2006, a year in which Republicans faced tough reelection campaigns, may have led to her firing.

"Lam alerted the Justice Department that FBI agents would, at her direction, search Foggo's home in connection with the Duke Cunningham case, and the following day [former Gonzales Chief of Staff] Kyle Sampson e-mailed the White House from the Attorney General's office that 'we have a real problem with Carol Lam' and urged that she be dismissed at the conclusion of her term," McKay wrote.

"Given the wide publicity of the Cunningham political corruption case ... it is reasonable to conclude that Gonzales, McNulty, Sampson and other senior Justice Department officials were aware of the underlying judicial proceeding being handled by Carol Lam.”

Despite the evidence, Iglesias said he believes it’s highly unlikely the White House will let Mukasey appoint a special prosecutor to investigate Gonzales, one of Bush’s closest allies. In his half year in office – after replacing Gonzales – Mukasey has proven himself to be a Bush loyalist.

Mukasey’s “got five months left,” Iglesias said. “There is no way he is going to right this ship that’s sinking in five months.”

The only way Gonzales and McNulty will be held accountable is if a new President decides to pursue the matter, Iglesias said, a move that Democrat Barack Obama has indicated he might do.

In testimony before Congress last year, Sampson and Goodling said McNulty and Gonzales did not testify forthrightly before Congress about their prior knowledge of the U.S. Attorney firings and the reasons behind the purge.

McNulty testified in February 2006 that the firings were “performance related” and the decision to terminate the federal prosecutors was made solely by the Justice Department.

McNulty also said Goodling and Sampson withheld key information from him before he spoke to investigators and testified before Congress.

But Goodling disputed McNulty’s assertions, saying he was well aware the White House was involved in the decision to fire the U.S. Attorneys.

"I believe the deputy was not fully candid," Goodling said in testimony before Congress in May 2007. "The allegation is false, ... I didn't withhold information from the deputy."

Goodling also told lawmakers she believed Gonzales tried to coach her before she testified by reviewing his recollection of the events that transpired around the time of the attorney firings.

Gonzales “proceeded to say, 'Let me tell you what I can remember,' and he laid out for me his general recollection ... of some of the process" of the firings, Goodling said.

When Gonzales finished, "he asked me if I had any reaction to his iteration," she added.

Goodling said the conversation made her feel uncomfortable because she knew she and Gonzales would be compelled to testify about the matter.

In April 2007, Gonzales had testified that he could not recall certain details related to the firings and that he was steering clear of witnesses such as Goodling so as not to influence their testimony.

"I haven't talked to witnesses because of the fact that I haven't wanted to interfere with this investigation and department investigations," Gonzales told the Senate Judiciary Committee.

Sampson also disputed a Gonzales statement at a March 13, 2007, news conference in which the Attorney General attempted to explain the firings by saying his chief of staff [Sampson] failed to brief him or his deputy, McNulty.

"I was not involved in seeing any memos, was not involved in any discussions about what was going on," Gonzales said.

However, Sampson testified that Gonzales’s statement was “not accurate.”

Documents released by the Justice Department last year showed that Gonzales and McNulty participated in an hour-long meeting with Sampson and three other officials on Nov. 27, 2006 — about two weeks before the U.S. Attorneys were fired — to review the plan to fire them.

Iglesias said he did not have confidence at first that the joint investigation by the Justice Department IG and Office of Professional Responsibility was going to be conducted thoroughly.

“I had to get talked into doing it,” said Iglesias, who published a book on the firings, In-Justice: Inside the Scandal That Rocked The Bush Administration. “I felt nothing was going to happen. But I was told that the people who work in those offices are career people. They are not politicos.”

Iglesias said the next administration should form an internal Justice Department task force to make sure that the recommendations in Fine’s reports – rejecting politicization in hiring practices and legal decisions – are acted upon.

“They can’t ignore this,” Iglesias said. “This is not going away with a new President. The fact that the Justice Department is the agency that enforces individual rights and they were violating those rights is just a really awful situation. What do you do when the watchdog isn’t watching?”