04.21.09

Gonzales' New Coverup

The emerging wiretap scandal ensnaring House Democrat Jane Harman leads to a familiar face: Alberto Gonzales, who may have stifled the investigation for his own political gain.

While press coverage of potential political corruption surrounding an espionage investigation has tended to focus on California Representative Jane Harman, the person most at risk on the basis of the facts disclosed so far is former Attorney General Alberto Gonzales.

Gonzales appears to have personally intervened to shut down an FBI probe into Harman’s potential wrongdoing—which was reportedly recorded on several wiretapped phone calls—because he viewed her as a key Democratic ally in Congress who could help him fend off accusations about warrantless domestic wiretapping.

“The allegations surrounding Harman again show Attorney General Gonzales deciding a criminal investigation for political reasons—in this case helping a key Democratic ally in Congress.”

Lawyers in the Justice Department’s criminal division reviewed the Harman transcripts—which suggest she may have agreed to help two pro-Israel lobbyists accused of espionage in exchange for political favors—and concluded that the transcripts presented the prospect of a “completed crime.” But Gonzales' role in stifling the criminal investigation into her conduct has been largely overlooked.

The exposure of Gonzales’ management of the Harman matter comes at a perilous time for the former attorney general. He is under scrutiny by a special prosecutor, U.S. Attorney for Connecticut Nora R. Dannehy, who was appointed to complete an investigation into abuse of power involving U.S. attorneys. The Justice Department’s own internal probe into the firing of nine U.S. attorneys could not be completed because a number of key figures, including some in the Bush White House, refused to cooperate with the investigators. However, the preliminary report found substantial evidence linking the firings to political efforts to manipulate prosecutorial decision making, specifically in the case in New Mexico.

The Harman matter emerged in an explosive piece published yesterday by CQ. Politics reporter Jeff Stein revealed that a 2005 FBI investigation targeting the then-ranking member of the House Intelligence Committee, Jane Harman (D-CA), had been shut down by then-Attorney General Alberto Gonzales. “I needed Jane,” Gonzales is reported to have remarked to then-CIA Director Porter Goss, referring to the California Democrat's interventions to support the Bush administration in connection with its highly controversial terrorist-surveillance program, which sifted through the communications of millions of Americans without court authorization.

The CQ Politics report echoed and clarified a Time magazine story that circulated in October 2006. The Time report said the Harman investigation was a spinoff investigation from a pending probe into two former top officials of AIPAC (American Israeli Public Affairs Committee), Steven Rosen and Ken Weissman, who were standing trial on charges of conspiracy to commit espionage for receiving classified information about Iran from a Defense Intelligence Agency operative.

Stein furnished significant new details about how the investigation came into being and how it was concluded. In particular, he reports on the content of the NSA’s October 2005 intercept of a telephone conversation between Harman and a still-unidentified person “thought to be an Israeli agent.” In the conversation, Harman discussed what is termed a quid pro quo arrangement under which she would lobby against the prosecution of the former AIPAC employees and AIPAC would lobby for her to secure the chair of the House Intelligence Committee following the anticipated Democratic turnover in the House in 2006. The conversation ended with Harman stating, “This conversation doesn’t exist.”

Harman issued a strong denial after the CQ Politics report ran, arguing that it was rehashing an old story and insisting that she never in fact intervened with the Justice Department in connection with the probe into Rosen and Weissman.

In this case, a decision not to complete a criminal investigation of Harman appears to have been reached based on Gonzales’ conclusion that she would be a vital foot soldier for the administration in batting down objections to the surveillance program, which Gonzales expected to erupt after The New York Times published an account of its operations.

The CQ story reveals, moreover, that the Bush administration mobilized Harman to persuade New York Times editor Bill Keller and publisher Arthur Ochs Sulzberger, Jr. not to run the story they had on the nature and scope of the surveillance program on the eve of the 2004 presidential election. (Yesterday, Keller suggested that Harman's intervention had not been key to the Times’ decision to delay publishing its story for more than a year over the protests of its reporter, James Risen.)

The question the prosecutors face is whether actions taken by Gonzales and other figures in the White House and the New Mexico Republican congressional delegation constitute an effort to “corruptly influence” a criminal investigation—a felony under federal law. There are very few instances in which Justice Department officials have been charged under the statute, and prosecutorial decision-making is generally obscured behind a doctrine granting prosecutors broad discretion in deciding whether to proceed with or abandon criminal investigations.

The allegations surrounding Harman again show Attorney General Gonzales deciding a criminal investigation for political reasons—in this case, helping a key Democratic ally in Congress compromised by a federal wiretap just as he knew the story about warrantless domestic wiretapping would break and her help would be essential to weather the ensuing storm.

The investigation into Gonzales already comes close to the new Harman facts in some regards. Part of the probe has looked into allegations that Gonzales mishandled classified materials by taking notes of a briefing with congressional leaders concerning the National Security Agency in 2004. This briefing occurred around the time that then-Deputy Attorney General James Comey and other senior figures at the Justice Department began questioning the legality of the NSA program, and it appears that Gonzales knew from the briefing that Harman would be an important ally in the process. Now the formal investigation into Gonzales may widen to include the Harman matter.

Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.