Attorney General Alberto Gonzales may have put himself in legal jeopardy with his testimony Tuesday before the Senate Judiciary Committee, Senators of both parties warned, as Members cast doubt on the truthfulness of his answers and suggested he may have improperly released classified information in his own defense.
Judiciary ranking member Arlen Specter (R-Pa.) told Gonzales at one point, “I do not find your testimony credible.”
He suggested the committee would “review your testimony to see whether your credibility has been breached to the point of being actionable,” an apparent threat to consider charges against the attorney general for lying to Congress. Specter also said it may be time to appoint a special prosecutor to deal with the executive privilege dispute between the White House and Congress over the firing of nine U.S. attorneys last year.
The primary point of dispute during the hearing was Gonzales’ contention that when he and then-White House Chief of Staff Andrew Card rushed to the hospital room of then-Attorney General John Ashcroft in 2004 to seek his approval of an intelligence program, the issue in question was not the broad eavesdropping program that the president has since publicly acknowledged.
Former Deputy Attorney General James Comey had testified in May that with Ashcroft undergoing surgery in March 2004, he was the acting attorney general, and in that capacity he refused to approve the extension of an expiring intelligence program. Comey refused during his testimony to confirm it was the domestic wiretap program that was at issue, but it has long been presumed that’s what he was referencing.
Gonzales himself told reporters in June that Comey had been talking about “what the president has confirmed” — which would be the terrorist surveillance program — but at Tuesday’s hearing, he said he had misspoken during that press conference and later clarified his remarks with a reporter from The Washington Post. He told Sen. Charles Schumer (D-N.Y.) that he could not say exactly what the clarification was because he did not contact the reporter directly and it was handled by somebody on his staff.
Gonzales repeatedly said Tuesday that he went to Ashcroft’s bedside to discuss “other intelligence activities” but refused to accept Schumer’s challenge to give a “yes or no” answer to the question of whether the hospital discussion involved the warrantless wiretap program used to eavesdrop on suspected terrorists.
The distinction matters because Gonzales had previously testified that he knew of no significant dissent within the Justice Department over the surveillance program. But a Senate staffer pointed out that the program may not have been called the terrorist surveillance program at the time because it did not get a name until the president publicly announced it.
In an effort to put the hospital visit “in context,” Gonzales revealed for the first time that on the same day he and Card visited Ashcroft, the “Gang of Eight” — the top two Republican and Democratic Congressional leaders along with the chairmen and ranking members of both chambers’ Intelligence committees — also had a classified White House briefing about Comey’s refusal to reauthorize the same “vitally important intelligence activities” that Gonzales said he went to Ashcroft to approve.
Gonzales testified Tuesday that the Congressional briefing resulted in a “consensus” from Congressional leaders that the program should continue despite Comey’s objections, and he said he went to the hospital because he and Card thought it was important that Ashcroft know the views of the Congressional leadership.
But two Members of Congress who were part of the Gang of Eight said if Gonzales approached Ashcroft about something that had been part of their discussions, it could only have been the terrorist surveillance program, whose existence the president confirmed in December.
“That doesn’t make any sense to me,” Rep. Jane Harman (D-Calif.) said of Gonzales’ testimony. She said the TSP was “the only program we were ever briefed about.”
Harman was ranking member of the House Intelligence Committee at the time, and confirmed that she attended the March 10 meeting referenced by Gonzales.
Similarly, Senate Intelligence Chairman Jay Rockefeller (D-W.Va.) said there was only one program that the Gang of Eight was briefed on, and it was the program the president already has confirmed. Plus, both Harman and Rockefeller said the Congressional briefings were limited in scope.
“We were briefed on the operational details — period — not the legal underpinnings,” Harman said.
Responding to a question about whether he believed Gonzales perjured himself Tuesday, Rockefeller responded, “Based upon what I know about it, I’d have to say yes.”
By revealing the Gang of Eight meeting, Gonzales therefore may have provided evidence undercutting his own sworn statement — given moments earlier during the hearing — that the disagreement in the Justice Department “was not about the terrorist surveillance program that the president announced to the American people.”
Meanwhile, Harman questioned the appropriateness of Gonzales even revealing that there had been a classified Gang of Eight meeting.
“The attorney general is selectively declassifying material from a classified briefing, which I find improper,” she said. “He doesn’t have the authority to do that.”
As the House Judiciary Committee meets today to vote on whether to hold former White House counsel Harriet Miers and White House Chief of Staff Josh Bolten in contempt for refusing — at the behest of the White House — to provide documents and testimony in the U.S. attorneys matter, Specter indicated he may be willing to pursue similar action in the Senate.
“We also have the alternative of convening the Senate and having a contempt citation and trying it in the Senate,” Specter said. “That might be productive.”
He suggested that with the administration vowing the Justice Department would not prosecute a contempt charge, it may be necessary to appoint a special prosecutor.
“This special prosecutor would handle a contempt citation if we get that far,” Specter told reporters. “We’re not quite there yet, but it looks like we’re heading there because all of the efforts to get an accommodation haven’t succeeded.
“If the president has the power … to stop a judicial determination on whether executive privilege is properly invoked, that means the president can invoke executive privilege on anything and not answer to anybody. It would just decimate oversight.”