True Faith and Allegiance

by Alberto R. Gonzales

  I failed to appreciate the difficult challenges created by the nomination of a former or current White House counsel. The US Senate would want to see Harriet’s internal memos, as well as sensitive documents she had reviewed. They would be interested in knowing her legal advice to the president. Such a nomination sets the White House on a collision course with the Senate over access to documents the president would want to protect as privileged.

  I also truly worried whether the Washington legal elite would support a Texan and a Southern Methodist University graduate, rather than an alumnus with an Ivy League background. Additionally, because Harriet was not a constitutional scholar, she would need extra time to prepare for a tough confirmation hearing, time that she did not have because of her many significant duties as White House counsel. Her confirmation hearing was already scheduled for November 7.

  Indeed, as Harriet worked to prepare for what was sure to be a grilling by the Senate, she came over to DOJ for hours. Our lawyers ran her through a refresher on the Constitution, a tutorial on important constitutional cases and discussions about the role of the courts in our system of government, then loaded her with heavy binders filled with material she needed to know. Harriet’s own diligence and conscientiousness worked against her. She attempted to study this massive amount of material while still going into work as counsel every day, then studying at night. The material is simply too difficult to attempt to master on a part-time basis.

  Besides all the other challenges, Harriet had the misfortune of following John Roberts, whose abilities were outstanding and whose performance at his confirmation hearing had been remarkable. She couldn’t simply be good; she had to be great.

  Finally, as we neared the scheduled confirmation hearings, my staff members who had been working with Harriet came to me, and one of them said, “She is not going to be ready enough.”

  “She has to be ready.”

  “She will not be.”

  I did not want my friend Harriet to be embarrassed. Nor did I want one of President Bush’s nominees to be rejected by the Senate. I also worried that Democrats would use Harriet’s nomination to demand access to sensitive documents involving high-level discussions—perhaps even presidential communications—on matters such as detainee interrogations and surveillance.

  I went to Andy Card and told him honestly, “Andy, my team tells me Harriet is not going to be ready, and I am worried about the demand for internal documents we are likely to get from the Senate. Harriet needs to quit as White House counsel and commit all of her time to getting prepared, and we need to develop a response to the requests for documents.”

  On October 27, 2005, Harriet withdrew her name from the nominating process and continued her job as White House counsel. Four days after Harriet withdrew her nomination, President Bush nominated Judge Sam Alito, whose impeccable credentials and formidable intellect stymied even the staunchest Democrat’s opposition, including that of the first-term senator from Illinois, Barack Obama. On January 31, 2006, Judge Alito was confirmed in the Senate, becoming—along with John Roberts—part of President Bush’s greatest contribution to America.

  In the end, the president placed two excellent jurists on the Supreme Court. Nevertheless, I felt some responsibility for the failed Miers nomination. It is never a good thing for a president when a Supreme Court nominee withdraws or fails to receive confirmation. But in light of George and Laura Bush’s friendship with Harriet, and the president’s loyalty and commitment to diversity, there was probably little that I—or anyone else—could have done to avoid what happened.

  Was I ever a serious contender to go on the court? Probably not. Too many conservatives would have opposed me because of my votes in the Texas parental notification cases and how they perceived my role in the Michigan affirmative action cases. Liberals would doubtless have opposed me because of what they believed my role had been in controversial terrorism policies such as surveillance, interrogations, and Guantanamo Bay. I had no real loyal base of support other than the president. Had I been advising the president about a potential nominee with my history, I probably would have cautioned against my nomination, as I did Harriet’s, especially if there was a strong alternative.

  During my years working with President Bush, I questioned his decisions only a few times. The nomination of our dear friend Harriet Miers was one of them. It would not be the last.

  CHAPTER 32

  MONEY IN THE FREEZER

  When Democratic congressman William Jefferson, Louisiana’s first African American representative since the Civil War, was suspected of demanding payments to help businesses receive contracts in Africa, I knew it would be a volatile case. But I could not have imagined how the corrupt congressman’s actions would influence so many lives, including my own.

  In March 2005, the US attorney’s office in the Eastern District of Virginia began investigating Jefferson for taking bribes in exchange for his influence in various overseas business ventures. The investigation was led by US attorney Paul McNulty. Jefferson was seen on videotape accepting $100,000 in cash at the Ritz-Carlton Hotel in Arlington, Virginia, just across the Potomac River from the Capitol. The money ostensibly came from a businessman purported to be interested in landing lucrative contracts in Africa, but was actually delivered by an FBI informant.1 When investigators searched Jefferson’s home in August 2005, they found $90,000 of the original $100,000 cash stashed in the congressman’s freezer.

  Two of Jefferson’s cohorts, one a Kentucky businessman and the other a former Jefferson aide, pled guilty, but the eight-term congressman denied any wrongdoing and vowed to remain in office to battle the investigation. The case dragged on into May 2006, when my staff brought the matter to me. In the meantime, the greater New Orleans area—represented by Jefferson—was decimated by Hurricane Katrina. That exacerbated the situation even further, since it appeared we were now pursuing a beleaguered representative whose home state had already taken a huge hit. Of course, the investigation against Jefferson had begun long before the levees at Lake Pontchartrain gave way. But that made no difference to many people. Jefferson was reelected in the middle of the investigation.

  Our case against Jefferson was strong, the investigators explained, but it seemed the congressman was willing to do almost anything to stall the investigation and discredit the prosecution. Consequently, Paul McNulty, who had been sworn in as deputy attorney general two months earlier, and the prosecution team wanted to build an ironclad case against Congressman Jefferson.

  They told me that they believed Jefferson was concealing important evidence relevant to their case in his congressional office in the Rayburn House Office Building on Capitol Hill. Specifically, the investigators hoped to obtain notes, telephone records, faxes, ledgers, computer files, and other communications showing Jefferson’s suspicious overseas travel and meetings. The prosecutors wanted to conduct a search of Congressman Jefferson’s office.

  The planned raid would be the first time FBI agents had ever searched a sitting lawmaker’s Capitol Hill office. McNulty and other members of my DOJ staff wanted to make sure that I was comfortable with their intended course of actions.

  I was not.

  Surprising as it might seem to some people, the US attorney general is not usually involved in decisions regarding the execution of search warrants by a US attorney’s office. But an FBI raid on Jefferson’s office would be no ordinary search.

  I questioned the prosecutors, “Why do we do we need to do this? After all, we have Jefferson on tape accepting a bribe. We found the $90,000 in his freezer. And two individuals have already pled guilty in connection with the bribery scheme.”

  The prosecutors responded that they liked their chances of a prosecution with the evidence they already had, but the case would be even stronger if they could get the information they believed was located in Jefferson’s office.

  “Have you exhausted all other means? Is there any other way to get this information?” I asked.

  “Je
fferson is unwilling to cooperate,” the investigators told me. “And the House of Representatives counsel has also refused to assist in the investigation. They say the documents belong to Jefferson so the House has no authority to provide access.”

  “What about working out some sort of accommodation with the House?” I asked, still not convinced a raid was our best option.

  “We’ve tried that as well, to no avail. Besides, any agreement would still require the approval of Congressman Jefferson because the documents belong to him, not the House.”

  “Will this search be lawful?” I asked, voicing the question that all of us knew we’d have to address sooner or later if we went through with the raid. Just because the FBI does it doesn’t necessarily mean it will stand up in court as a lawful raid. In fact, our Constitution provides that members of Congress must have great freedom to study and discuss issues pertaining to our country and in the legislative process; that “speech and debate” is considered privileged material.2 The Constitution safeguards the communications and written materials that members of Congress produce or use while fulfilling their duties.

  Even if the search were successful in procuring the desired items from Jefferson’s office, I worried that the investigators might view other materials concerning the congressman’s duties that would come under the protections of the speech and debate clause. When I voiced my concern to Steve Bradbury, the acting head of the Office of Legal Counsel (OLC), he reminded me the Supreme Court had ruled that the speech and debate clause covered activities such as voting, committee hearings, and reports, but did not protect members of Congress when they were engaged in non-legislative activities.

  I remained uncertain. A wily congressman could tie virtually anything to some legislative activity. How would we ensure that the prosecution team searching Jefferson’s office would not peruse privileged materials, whether intentionally or accidentally?

  The answer the department developed included a set of special search procedures, designed specifically for the raid on Jefferson’s office. We decided to take along a “filter team,” consisting of two Department of Justice attorneys who were not involved in the prosecution work and one FBI agent who had no role in the investigation. These objective observers would accompany the team of FBI agents who would conduct the search.

  The filter team would examine the documents seized and would return any irrelevant items immediately to Congressman Jefferson. For any potentially privileged documents, the filter team could provide a log and copies of the documents to Jefferson within twenty days of the search. The filter team would submit any questionable documents to a judge for determination of privilege. I felt more comfortable with the search if it could be conducted with these safeguards. At least if we were challenged—as we quite likely would be—we could credibly say that we had made a valiant attempt to protect congressional privilege while conducting an important investigation.

  I really did not believe that the framers of our Constitution intended that an uncooperative member of Congress should be above the law and immune from searches. Nor did I believe that Capitol Hill should be a safe haven to hide potential evidence of wrongdoing. But when I inquired further, I could find no precedent for searching the Capitol Hill office of a sitting member of Congress. I found precedents for searching a lawmaker’s home or car. I assumed that many members had offices in their homes where they might have files or documents pertaining to their work, and those were subject to search. Even a judge’s chambers were subject to search. Why should members of Congress be any different?

  Nevertheless, I wondered how Speaker of the House Dennis Hastert might react to a search of a congressman’s office, irrespective of the legality. The Speaker was a proud man. Would he regard such a raid as an assault on his institution? I understood that. When I had served as White House counsel, I had fought fiercely to protect the institution of the presidency. For instance, I had worked carefully with the 9/11 Commission to help them get information they needed while not encroaching upon the president’s constitutional prerogatives.

  I didn’t know Speaker Hastert well. We’d met, of course, and had been together on numerous occasions when the president was signing a bill, but the Speaker and I were not close friends. He was, however, a Republican Speaker of the House who owned the good graces of the president, and although he was probably not a fan of Jefferson’s, a Democrat, I had little doubt that if Hastert felt his territory was being encroached upon, he’d push back and likely cry foul to the White House.

  My gut instincts told me that it would be wise to give the House leaders and the White House a heads-up—letting them know in advance that the raid was going to happen. But how could we do that without jeopardizing the investigation? The Justice Department did not clear investigations with the White House, much less Congress. This was Washington, after all, where self-interest often resulted in leaks of sensitive information.

  The safe decision would have been to override McNulty and his team and tell them to either get the information some other way, or go to court with the solid evidence they already had in hand. On the other hand, the experience of Paul McNulty and his prosecution team, coupled with OLC’s Steve Bradbury’s view that the search was legal, weighed heavily toward my taking the risk.

  If I second-guessed the judgment of my own deputy attorney general and the director of the FBI, and discounted the opinion of the OLC, some people at the Justice Department would wonder if I was simply appeasing President Bush. They would see me as not wanting to buck Speaker Hastert, because the president needed him to carry the water for his legislative agenda in the House of Representatives. The question of my allegiance to the law or to Bush had popped up during my confirmation hearings as attorney general: Because of my friendship with the president, could I be objective about investigating any potential wrongdoing, especially if it touched upon White House or Republican interests? Now, if I nixed the Jefferson search, would I be branded as another political tool?

  I stood at the desk in my office looking out at the Washington Monument as I wrestled with the decision. Armed with the OLC advice that the search would be constitutional, and the collective judgment of senior DOJ prosecutors and the FBI that the search was necessary, I approved the search despite my concerns, because one of the top priorities for the Justice Department was prosecuting public corruption. The prosecutors approached a DC federal judge, Thomas Hogan, and obtained a search warrant based on probable cause that evidence of a crime existed in Congressman Jefferson’s Capitol Hill office. To minimize publicity about the search—to the extent that it’s possible to downplay a number of FBI agents hauling boxes out of a Capitol Hill office—I agreed with the FBI that it should occur during a weekend, when House offices were closed.

  On Wednesday, May 17, 2006, I departed on board an FBI G5 jet from Andrews Air Force Base, traveling to Dallas for a round of meetings with the Mexican attorney general, Daniel Cabeza de Vaca, and John Walters, US director of the Office of National Drug Control Policy. When I boarded the plane later that night, we flew to Houston, my hometown, where the next day, I gave a speech to the Houston Forum, a well-respected community group; I then met with the Houston Chronicle editorial board, and participated in a roundtable discussion regarding hot-button immigration issues. Later that evening, I got a chance to fulfill a dream: throwing out the first pitch at a Houston Astros baseball game.

  All the while, back in Washington, FBI investigators readied themselves for the raid on Congressman Jefferson’s office. As I was recognized by Leadership Houston at a black-tie dinner on Saturday evening, May 20, the FBI search party entered the office, not allowing anyone else in the area while they were inside. Just before the raid commenced, investigators notified the White House, the House of Representatives, and Jefferson’s lawyers, to avoid them first hearing about it on the news, but we did not allow anyone else to be present while the FBI scoured the office. The search concluded eighteen hours later, early Sunday afternoon, and the investi
gators left with a cache of documents.

  Explosive repercussions ensued almost immediately—and not merely from Jefferson or his lawyers. On Sunday, May 21, I left Houston at 2:00 p.m., heading back to Washington. During the flight, one of my staff members informed me that White House chief of staff Josh Bolten wanted to discuss the Jefferson search. Josh had replaced Andy Card when Andy left the administration in 2006, the longest-serving presidential chief of staff in fifty years.

  It had been a busy weekend and I was tired. Besides, I had not yet received all the details of the raid and the materials seized, so I had little new information. “Ask him if it can wait till I get back to Washington,” I responded. The staffer dutifully passed along my question and quickly returned.

  “It can’t.”

  When I took the call in the plane, I quickly realized why. It was not merely Josh on the phone; also on the call were White House counsel Harriet Miers; David Addington, counsel to the vice president; and Joel Kaplan, Josh’s deputy.

  Harriet began by telling me they had concerns about the search. David was more direct. “It is a clear error,” he said, “a mistake you must correct.”