Becky was also sensitive to the fact that because of my intense work schedule, our boys were growing up with an absentee dad who was living in the same house. We simply were unable to do many of the enjoyable father-son activities because I was away from home so much, and even though I tried desperately to be a good dad, it’s tough when you see your kids only a few minutes every day or a few hours on the weekends.
Yet Becky had mixed feelings because of her deep affection and respect for the president—and he had personally asked me to stay. So instead of my declining to serve, Becky resigned herself to four more years in Washington.
We could not have anticipated the firestorm we were about to encounter. Nominated November 10, 2004, as the attorney general, the confirmation hearings in January 2005 were intense, with numerous sensitive questions. I had spent weeks in preparation, including several mock hearings, and it had been time well spent. Senator Orrin Hatch, with whom I had worked closely on a number of judicial nominations, was particularly helpful during my confirmation hearing before the Judiciary Committee, as was the committee chairman, Senator Arlen Specter. Although the grilling was tough, I did not receive a single unanticipated question. Nevertheless, I was exhausted and relieved when the process was completed and I was confirmed.
I began serving as the eightieth attorney general of the United States on February 3, 2005, guiding a department composed of about 105,000 smart, dedicated employees. I was determined not only to continue waging the war on terror but to address other important issues that touched our nation, including organized crime, narcotics, human trafficking, border enforcement, mass-marketing scams and corporate fraud, political corruption, and one of the most pernicious plagues ever perpetrated: the abuse of children through child pornography. My heart ripped apart when I discovered the horrendous abuses imposed on innocent, defenseless children, and I vowed to do everything within my power to work with state and local officials to stem the tide of perversion and prosecute the vicious and vile perpetrators of these crimes.
Becky and I knew we had entered a sobering new realm when the FBI approached us and offered to fit our boys with large, bulky watches containing GPS wristbands in case they were abducted. The GPS could not be removed by anyone but us or the FBI and would help agents locate our boys in an emergency. While that sounded like a good idea, we turned down the watches because Becky feared if our boys were kidnapped, the bad guys would not think twice about severing their arms to remove the tracking devices.
My new normal involved tracking down terrorists through the FBI, meetings with world leaders, and helping with their concerns in preventing future terrorist attacks. But I also sought to establish important priorities at the Justice Department for the protection of children from sexual predators, the extradition and prosecution of drug kingpins, and the prosecution of corrupt public officials.
From the beginning of my term as attorney general, criticisms surfaced that I could not be objective as the nation’s top law officer because of my close relationship with President Bush. The fact that I felt like a friend to the president was a double-edged sword. I had access to the president, and my relationship with him gave me clout with other cabinet members. On the other hand, our friendship raised questions about whether I would ever challenge the president if I thought he, or someone in his administration, was doing something unlawful.
This was another illustration of the ridiculous double standard that exists in Washington political circles. For instance, these same critics conveniently ignored the fact that President John F. Kennedy chose his own brother, Robert F. Kennedy, as attorney general. Moreover, in recent years, President Obama tapped his good friend Eric Holder to lead the Justice Department. One of New York’s senators, Democrat Chuck Schumer, pushed for and succeeded in getting his own staffer, Preet Bharara, confirmed as the US attorney in New York—the same office that would direct any investigation of wrongdoing in Manhattan by Senator Schumer or his staff. This was the same Chuck Schumer who called to tell me that he would not vote for me in the Judiciary Committee because he viewed me as too close to the president. In my opinion, having an attorney general who understood and shared the concerns of the president was a plus, rather than a negative.
Although we had made many controversial decisions during President Bush’s first term, including a few that were overturned by the Supreme Court,1 the only major investigation involving the White House during my tenure was over the phantom leak that precipitated the outing of CIA undercover agent Valerie Plame. Her husband, Joe Wilson, had traveled to Niger, ostensibly to confirm information that Iraq had tried to acquire uranium from Niger. Wilson had claimed that he was sent to Africa at the request of Vice President Cheney’s office, and later vociferously criticized President Bush’s discredited assertion that Iraq had attempted to procure weapons-grade uranium. When Wilson’s wife’s identity as an undercover CIA operative was disclosed—in violation of federal law—and then noted in a newspaper column by Bob Novak, Wilson claimed the disclosure was because of his opposition to Bush. That was ridiculous and proved to be false.
Nevertheless, Plame’s identity had been compromised, instigating an enormously expensive and time-consuming investigation of the White House led by special counsel Patrick Fitzgerald. This ultimately led to the indictment of Scooter Libby, the vice president’s chief of staff, not on charges of outing a CIA agent, but on charges of false statements and obstruction of justice.
For a short time early in the probe, the president, Andy Card, and I had serious concerns that Karl Rove was accidentally responsible for the leak because of conversations he’d had with Novak contemporaneous with Novak’s article. As it turned out, he was not, but I urged certain members of the administration to hire attorneys to help them negotiate the investigation by Fitzgerald. Because this investigation involved potential criminal wrongdoing, as a government lawyer, I could not counsel or represent White House employees. For the same reason, neither could I represent the president. Although the president had done nothing wrong, I helped him identify and hire a personal lawyer. Before the engagement, I had clandestine meetings with the lawyer, in hopes of concealing from the media the fact that the president had hired outside legal representation. Because of my job in the White House, I was eventually called to testify as a witness in the grand jury proceedings as well.
Scooter Libby was convicted of the charges against him—but not of outing Plame. Indeed, it turned out that Colin Powell’s deputy secretary of state, Rich Armitage, had unwittingly slipped the information about Valerie Plame to reporter Bob Novak, as well as to reporter Bob Woodward. What was puzzling and frustrating to Libby allies is that it was likely that Fitzgerald learned early in the investigation that Armitage was the culprit, yet he spent more than two years and a lot of taxpayer money in what even the Washington Post decried as “a lengthy and wasteful investigation.”
By the time Scooter Libby’s case went to trial, I had moved on to the attorney general’s office, so I recused myself from the case, as John Ashcroft had done before me. I agreed with President Bush’s decision to commute Scooter Libby’s sentence so he wouldn’t have to serve prison time. Nevertheless, it pained me to watch as a friend’s career was destroyed. It was a lesson to which I should have paid more attention.
I wasn’t at Justice long before a delicate matter set me at odds with the White House staff. John Yoo’s legal opinions had guided many of the Bush administration’s terrorism-related decisions immediately following 9/11. By the time I moved over to the Department of Justice, John had returned to teaching law at UC–Berkeley.
By 2005, in our constant effort to provide clarity on how we conduct the war on terror, the Office of Professional Responsibility (OPR) within the Justice Department—charged with evaluating whether DOJ lawyers satisfied professional and ethical standards—wanted to examine John’s work on the early legal opinions. They were especially interested in Yoo’s opinions regarding the interrogations of detainees and the Stellar
Wind program, which had been initiated within a month of 9/11. I had no qualms, believing that John’s opinions were thorough and could stand or fall on their own.
To study Stellar Wind, however, the OPR officials needed clearances to be read in to the program, and only the president could grant that permission. Shortly after I became attorney general, my chief of staff, Kyle Sampson, came to me and said, “OPR had to stop their investigation of John Yoo’s opinions because they can’t get read in to the program by the White House.”
I thought that was a misstep at the White House for at least three reasons. First, I felt it was important that Americans were assured that the lawyers at the Department of Justice making important judgments about the war on terror, especially in those turbulent days following the attacks on our nation, were not operating arbitrarily but were consistent with professional standards. The OPR oversight helped provide that assurance.
Second, although I was confident of John’s work, it had evoked strong disagreements. Jack Goldsmith and Pat Philbin had questioned some of John’s opinions, for example. So if there was a problem with anything John had worked so hard to accomplish under extremely difficult circumstances due to the highly charged atmosphere following 9/11, we ought to address it. This was not to second-guess whether John’s work was reasonable based upon the circumstances, nor was it necessary to agree with John’s conclusions. It was simply to assure the quality of those early opinions met basic professional standards.
Third, I thought it was unwise and absolutely wrong to put the president in a position where it would appear he was blocking a Department of Justice investigation of officials in his own administration. There was no way his critics would let that alone.
I instructed Kyle Sampson to talk with the White House about these matters, but we couldn’t get any movement. Finally, I asked to see the president personally. I met with him, along with the new chief of staff, Josh Bolten, and new White House counsel Harriet Miers, in the Oval Office, and laid out my reasons why he should consider reading Marshall Jarrett, head of OPR, into the surveillance program so he could examine the Yoo legal opinions undergirding our actions.
The president listened carefully, but I could tell by his manner that he had already made up his mind, and his answer was going to be no. Perhaps he and Harriet had already come to that conclusion before I arrived; he didn’t say. Nor did he refuse my request during the meeting.
Harriet called me later and said, “The president is not going to read Marshall Jarrett into the program.”
I was disappointed and worried about the political fallout to the president—and to me—if his decision became public. Sure enough, in almost no time, the president’s detractors picked up the issue. His critics in Congress sent me a letter questioning why the investigation had been blocked. Their letter carried a what-are-you-hiding tone and an implicit, second question: “Did the president block the investigation to protect you, Al Gonzales?”
Stories quickly circulated in the media suggesting the president had blocked an investigation to protect me in regard to my involvement with the surveillance program.2 There was even some suggestion that I had requested the investigation be blocked. The news stories were totally upside down. I was the one who had encouraged the president to allow the investigation.
The stories soon morphed into the completely untrue “Al Gonzales is blocking the investigation!” I was getting clobbered in the press, accused of acting unethically and unprofessionally to protect myself or because of my friendship with the president. None of that was true.3
Perhaps motivated by the negative media attention, the president eventually reconsidered and allowed Marshall Jarrett to be read in to the program, and the investigation went forward. But by then the damage to me had been done.
Certainly, the president was within his right to refuse clearance into Stellar Wind. He may have possessed information to which I was not privy, and he was certainly right to be more concerned about damage to our national security than damage to my reputation. Nevertheless, his initial refusal hurt me publicly, the false stories impugned my professionalism, and cast further aspersions on my own ethics and morality.
John Yoo’s opinions, signed by Jay Bybee of OLC, were examined thoroughly by OPR. That investigation concluded Yoo and Bybee committed intentional, professional misconduct. On review, by then associate deputy attorney general David Margolis, the DOJ declined to adopt OPR’s findings of professional misconduct and concluded that Yoo and Bybee exercised poor judgment. From my perspective, they did a commendable job of examining very difficult issues and providing legal justifications for US actions in the war on terror under horribly stressful circumstances.
Nevertheless, the criticism over my role added to a developing narrative that questioned my integrity.
CHAPTER 31
SEARCHING FOR JUSTICE
I kept busy during my early months at DOJ, getting comfortable with the job and the people. Having served as White House counsel, I already knew many of the main players and many of the major issues with which we were dealing, so the transition was relatively easy, yet still time-consuming.
I continued to meet with the small group screening potential Supreme Court nominees. In the spring of 2005, our selection committee ramped up our work to be ready for a vacancy at the end of the Supreme Court term in June. Harriet Miers was now counsel to the president, so she joined Vice President Cheney, Andy Card, Karl Rove, and me in reviewing potential Supreme Court candidates. While we had to be prepared for any contingency, we primarily worked with an eye toward filling the seat of Chief Justice William Rehnquist, given his declining health.
In April, we informed the president that our top four choices for the chief ’s seat were Fourth Circuit judge Michael Luttig, Fourth Circuit judge J. Harvie Wilkinson III, Second Circuit judge Samuel Alito, and DC Circuit judge John Roberts. President Bush instructed us to interview the four candidates and report back to him. All were marvelous, extremely competent candidates. I had talked with several of them privately over my four years in the White House, and I believed any of the four would perform admirably as chief justice.
Harriet and I took the lead in questioning the four candidates. In our interviews with potential justices, we did not ask about specific cases or how the individual might rule on a particular case, because if the person was later confirmed, he or she likely would have to recuse himself or herself if such a case ever came before the court. Furthermore, if we had asked those questions on the record, the Judiciary Committee could then explore those same issues. Instead, the questions stayed closer to how the nominee would interpret the Constitution, US laws and regulations, as well as whether they appreciated the value of restraint and of deferring, when appropriate, to the elected branches of government. Rather than the outcomes of cases, I was more interested in the process a potential nominee would use to reach a decision. In my judgment, this was much more indicative of how a future Supreme Court justice would discharge his or her duties on the court.
Second Circuit judge Sam Alito responded brilliantly during the interview process. He was several committee members’ number one choice. His answers were crisp, precise, clear, and to the point. He had a wealth of experience, having been on the Court of Appeals for more than fifteen years, and there was no question about his conservative credentials. Oddly, Judge Alito had not done particularly well when I had met with him in the White House early in President Bush’s first term. He had appeared nervous and a bit nerdy, but when we interviewed him at the vice president’s residence, Judge Alito was stellar.
Fourth Circuit judge Mike Luttig was another favorite. Intelligent, articulate, and thoroughly conservative in his views and his legal opinions, Mike’s only drawback was he was almost too conservative. I liked Mike and admired him, and his nomination would surely fire up the conservative base. I knew, however, that to nominate him would stir up a lot of liberal opposition. Based solely on my private conversations with the president, I questi
oned whether he wanted to take on the fight that a Luttig nomination would surely create.
A well-respected Southern gentleman, Fourth Circuit judge J. Harvie Wilkinson III had been on the bench a long time, had a lot of experience, and was a distinguished jurist. The downside was that he was older, had a long paper trail, and some of the things he had written were sure to be viewed by liberals as controversial and challenged.
DC Circuit judge John Roberts was young, but he was brilliant. He had been on our radar since 2003, and seemed to have a solid grasp of the Constitution combined with an impeccable, almost photographic memory of past legal cases. His relative lack of experience on the bench meant he had less of a paper trail to attack, and he had a charming, easygoing manner that masked a ferocious intellect.
Because we did not want the world to know who we were interviewing, we held the discussions at Vice President Cheney’s residence at the Naval Observatory. Our selection group met with Judges Luttig and Roberts on May 3 and Judges Wilkinson and Alito on May 5. All four candidates were impressive. Following the interviews, members of the selection group had a much better appreciation for who they might recommend to the president in the event of a vacancy.
In early June, our selection committee met again, and Andy Card advised us that the president was unhappy with only four options. The president wanted some diversity on the final list. Our committee refocused our efforts to examine diverse candidates that included women, Hispanics, and African Americans. Believing that our committee was now looking for a replacement in the event of an O’Connor vacancy, on June 21, our committee quietly interviewed two female federal circuit court judges in a conference room in the basement of the West Wing. We did not reach a consensus on a candidate to recommend to President Bush, but I felt better prepared in the event of a vacancy.
True Faith and Allegiance Page 39