True Faith and Allegiance

by Alberto R. Gonzales

  David and I had worked together through many difficult situations. We were colleagues and friends. So I was somewhat taken aback by his brusque tone, which sounded almost patronizing to me. I was instantly irritated by his challenge. I disagreed with him and I told him so. “This is a unique case with unique circumstances,” I continued. “It’s important that this case move forward.” I briefly sketched out the reasons. I concluded by questioning why we would give members of Congress special treatment not afforded to judges, state legislators, or ordinary citizens.

  Addington remained skeptical. “I’ve spoken to McNulty, and he was unable to confirm whether Jefferson was about to destroy evidence,” David said. “So where’s the urgency?”

  Josh interrupted to say that the president wanted to discuss the matter of the search at 7:45 a.m. the following day.

  “Of course; fine. I’ll be there,” I replied.

  As the call concluded, David Addington asked rhetorically, “Does the seizure of the documents, by itself, violate the speech and debate privilege?” Apparently David believed it did. I did not.

  David is a brilliant lawyer and the type of person you want on your side in any legal fight. During the six years I had been in Washington, I had witnessed him taking on other outstanding lawyers many times, but this was the first time he had ever directly challenged me in front of others.

  After being picked up by my FBI security detail—protection afforded every attorney general—and taken home, I greeted Becky and the boys before directing a conference call that included Kyle Sampson, Paul McNulty, Steve Bradbury, and McNulty’s chief of staff, Mike Elston. Paul had already spoken with Dennis Hastert’s chief of staff, Scott Palmer, and, apparently it had not been a friendly conversation. The Speaker felt blindsided by the search and wanted to know why they had not received advance notice. As I had suspected, the Speaker’s concerns were over the institutional interests of the House, not any particular fondness for Congressman Jefferson.

  During the conference call, Steve assured me that we were “right on the law.” I certainly hoped so, because we now knew that not only Jefferson would contest the search, but the Speaker of the House was upset by it, and so was the White House—that catchall, ambiguous, amorphous term used to describe a consensus that might include everyone from the president to the senior staff.

  From my call during the flight home, I knew that at least some officials in the White House believed the documents seized in the search should be returned immediately, so I raised that possibility during the conversation with my team. To a person, they opposed returning the documents. They suggested at least four good reasons why we should not return the seized items.

  First, these were documents in an ongoing criminal investigation. To return the documents could jeopardize the prosecution of a crime. Second, returning the documents could create a chain of custody challenge over the authenticity of the documents—who had the rights to what? Third, conceding that the speech and debate privilege applied in this case, and to completely cut off any search would certainly inhibit future congressional investigations, and might even make it impossible to search Congress members’ homes or vehicles. Finally, my team was convinced that if we returned the documents, we would not get them back—at least not intact. We’d been unable to enforce a grand jury subpoena because the House counsel was unwilling to cooperate. And if we returned the documents to Jefferson, we’d probably never see them again.

  We all understood the risks that comity could break down between the executive branch of government and the legislative branch. Congressional leaders would be outraged—not because they believed Jefferson was innocent, but because they regarded the incursion into his House of Representative’s office as a violation of speech and debate privilege, and therefore of congressional privilege.

  At the conclusion of the conference call, I asked Steve Bradbury to call Harriet Miers to inform her of OLC’s views. I believed it was important that Harriet hear other expert legal voices on the matter in addition to David Addington’s.

  The next morning, I met with President Bush in the Situation Room, along with Josh, Joel, Harriet, David, and Candi Wolff, the assistant to the president for Legislative Affairs. Participating by means of the secure video conferencing feature in the Situation Room was Vice President Cheney.

  I explained the reasons for the search and the special circumstances surrounding it. I also informed the president of the Department of Justice’s position on the legality of the search, but I emphasized that the decision to act was mine and that I was responsible.

  President Bush listened intently. On the conference screen, the vice president suggested that we not be so definitive on this question. The legal issues, he said, were not that clear, so why shouldn’t the legislature have the opportunity to decide whether privilege applied? “Why should the executive branch answer this question?” he asked.

  I reminded Vice President Cheney that the question would not be answered solely by the executive branch. After all, a federal judge had issued the search warrant, so a federal judge would be involved in verifying whether the search was constitutional.

  The vice president seemed undeterred. “The White House often asserts privilege,” he said. He expressed concern about how the DOJ’s search of a congressional office might impact the White House’s assertions of privilege in the future. On that point, he was probably correct.

  As I listened to him, I thought, Addington has certainly armed the vice president well—as a good lawyer should for his client.

  After listening to the discussion, the president weighed in. “I don’t want the attorney general to be undercut,” he stated. He then turned to me and said, “Talk to Speaker Hastert this morning, before I see him later.”

  “Yes, sir.” The president’s response had not been one of rousing support, but at least he had not ordered me to return Jefferson’s documents. I considered that a win.

  Following the meeting, I traveled to Allentown, Pennsylvania, to participate in an anti-gang event. I also met with Hispanic leaders and spoke to a group of high school students. It was a busy day, but I repeatedly placed calls to Speaker Hastert’s office at every opportunity. Each call was rebuffed. “He’s busy,” I was told. After a number of calls, his staff informed me, “The Speaker will call you later today.”

  He never called.

  The raid of Jefferson’s office had made the news by now, so later that afternoon, while still in Allentown, I made my first public comments about the search. “The Department of Justice took a unique step in response to a unique set of circumstances,” I said.

  By the end of the day, the story had escalated in the media, prompting harsh comments from House members. Hastert had still not returned my calls.

  I returned to Washington, and later than evening, I received a call from Harriet at my home, warning me that the situation seemed to be spiraling out of control. The House leadership was furious and the president wanted this matter resolved—now. We talked it over, and although it was already past 9:00 p.m., I agreed to immediately send a team from DOJ up to the Hill to work with members and their staffs pursuant to the president’s instructions. Harriet scheduled a meeting for 10:00 p.m.

  She advised me not to include Paul McNulty in the group because the White House viewed Paul as too close to the decision to proceed with the search, since the case had originated when he was a US attorney. I was disappointed with that perception, but I sent Alice Fisher, the head of the DOJ Criminal Division, instead. Along with Alice was Will Moschella, our legislative director, and Steve Bradbury from OLC.

  Prior to the meeting on the Hill, I convened another conference call with my team. We agreed to offer two accommodations to the House that could easily resolve the dilemma. First, the documents would be returned to Jefferson on the condition that the House agreed it would immediately honor the DOJ subpoena for the documents. This would, of course, require Jefferson’s cooperation. He was unlikely to acquiesce, but that was
the Speaker’s problem.

  As a second possibility, we would agree to place the documents with the court as custodian for Jefferson and the prosecution as we worked through the issues.

  The team assembled on Capitol Hill, but around midnight I received a report that little had been accomplished in the meeting. It had been tough and intense, with the House staff casting plenty of criticism, but offering little else.

  Just prior to my morning national security briefing at the FBI headquarters the following day (Tuesday, May 23), I called the president around 7:00 a.m. to give him a report. He seemed to appreciate my update, but before concluding the call, he cautioned me, “You’re in the middle of a storm, Fredo, and you need to get it worked out.”

  “Yes, sir. We made some progress last night, and I’ll continue to work at it.”

  Later that morning, Josh Bolten called me and suggested that he, Harriet, Paul McNulty, and I get together before the president’s afternoon meeting with Hastert. I readily agreed and passed along the information to Paul.

  Paul was delayed, so that gave me a chance to talk privately with Josh before the meeting. Josh told me candidly that there was a strong view in the White House that the Jefferson documents should be returned.

  I was surprised. I could feel the rug being pulled out from under me. As I listened to Josh, regardless of the way he artfully posed his points, I could tell the real question he was asking was whether I would stand with the Department of Justice or abandon my prosecutors because of the request by the White House.

  “I will not voluntarily return the documents,” I told Josh quietly. I wasn’t being stubborn or obnoxious. I had made my decision based on the recommendations of knowledgeable, senior DOJ officials. I did not want to lose credibility with the entire Justice Department over this issue. “If the White House wants the documents returned,” I reiterated to Josh, “the president will have to order me to do it.”

  My words were carefully calculated. As White House counsel, I had repeatedly cautioned the White House against interfering with an investigation by the Department of Justice. I hoped they had learned the lesson and would back off.

  When McNulty and Miers arrived, we plunged headlong into the discussions of possible options for resolving the controversy before it became a full-blown political firestorm. Harriet proposed that we simply return the documents to Jefferson and then get another search warrant, but that we should give the House the opportunity to contest the search before collecting any documents again. Her suggestion troubled me and smacked of silly gamesmanship, but worse yet, I feared that as a longtime friend of the president, she was expressing his preferences, expecting me to read between the lines. In any event, I was not about to follow that suggestion.

  Nor was McNulty, who pushed back during the meeting. He reiterated our position, that it made no sense to return documents to a suspected criminal in the middle of an investigation—congressman or no congressman. Part of the reason we were in this situation was because Paul had so adamantly recommended that we seize the documents from Jefferson’s office, so I appreciated that Paul stepped up.

  As the meeting continued, it sounded to me that the White House wanted the documents returned, but was unwilling—at least for now—to order the FBI to do so. That made for an awkward tension. I had expected the White House to support my decision. In the Situation Room, the president had stated that the White House would not undercut me. Apparently that position was shifting. I left the meeting discouraged and returned to my office at the DOJ. Although I did not believe that the White House was attempting to obstruct justice, this was the first time since coming to Washington that I worried I could not count on the Bush administration for support on a law enforcement matter.

  Around 1:30 p.m., Josh called, requesting that he and I get together again that afternoon. “I’m sorry, Josh,” I said, “my afternoon is packed with meetings here at DOJ.”

  “Well, I’d be willing to come over there,” he suggested.

  That signaled to me that whatever Josh wanted to discuss was serious. “No,” I replied. “I’d better come over there. Let me see what I can do.” I knew that nobody would consider it unusual for the attorney general to go to the White House to meet with the president’s chief of staff, but if Josh came to our offices, the entire Justice Department would notice. His presence would send a worrisome signal throughout the building.

  That afternoon, just before I attended a telemarketing fraud press conference, I had a brief, open segment in my schedule, so I went to see Josh in his White House office. It was another awkward meeting—with Josh hinting that the White House wanted the documents returned and with me outlining the reasons why that wasn’t a good idea. I well understood that the president needed Hastert to be happy so he could press through his legislative agenda in the House. I also understood that we were still immersed in the war on terror, and the president needed united support in the House and the Senate. I wasn’t surprised that we couldn’t work out a deal between DOJ and the House. It was obvious the House leaders believed that in the end, we would acquiesce because the White House needed the House’s support and would order us to return the documents.

  I reminded Josh of the president’s remark in the Situation Room a few days ago, when he said he did not want me to be undercut. Now, contrary to that assurance, it seemed the White House wanted to do precisely that.

  Josh agreed that I was being undercut, but he disagreed that if we returned the documents, I would lose respect, credibility, and influence at the Department of Justice. “You are beloved over there,” Josh said with a hint of a smile. “You’d be fine.”

  “Well, give us a chance to reach an accommodation with the House that will also satisfy DOJ concerns,” I suggested. I reminded Josh that we were convinced Jefferson had broken the law; the FBI and the prosecutors believed the seized documents were important to their case, and OLC said the search was legal.

  Josh understood but suggested that it might look better for me if we returned the documents without President Bush ordering me to do so.

  I disagreed. “In fact,” I said, “if the president is leaning toward directing me to return the documents, I would like to speak to him privately.”

  “Of course,” said Josh.

  Later that afternoon, Josh called me at my office to let me know that Candi Wolff, the White House legislative director, was setting up a meeting on the Hill at 3:30 p.m. to resolve the impasse. This thing had dragged on far too long. To lighten the moment, it seemed, Josh shared with me that the president had asked him whether, in the course of our discussions, he had reminded me that the president loved me. Josh told me, “I said, ‘No, Mr. President. The L-word never came up.’ ”

  Josh and I both laughed. We understood how much the president cared about the people close to him, and we realized that the Jefferson incident strained his relationships in ways that some people could not even imagine.

  Not surprisingly, that same day during my press conference about telemarketing fraud, questions popped up about the Jefferson search. I stuck to the usual scripted sort of answers. “This is an ongoing investigation. The Department of Justice considers it a valid search. We will continue to work to allay the concerns of Congress.”

  Paul McNulty, Will Moschella, Alice Fisher, and Steve Bradbury attended the 3:30 p.m. meeting on Capitol Hill, at which I authorized them to present two further possible accommodations to the House. The first, suggested by Kyle Sampson, was to place the documents in the custody of the House sergeant at arms, during which time the House and the DOJ would share custody. This would allow the documents to be “returned,” and the House could announce that they “had the documents back,” yet still allow DOJ access to them as we worked toward a better solution.

  The second offer, proposed by Alice Fisher, called for the department to return the original documents to Congressman Jefferson, but the department would keep a copy.

  Paul called me around 5:00 p.m. to report that for
the first half hour of the meeting the House staff had whined and complained, but by the end of the meeting, they seemed intrigued by the new proposals. Another meeting was scheduled for 8:00 p.m. that night. I took that as a hopeful sign.

  Unfortunately, around 7:00 p.m. Paul called again, this time to report that the later meeting had been canceled by the House; “they needed more time to discuss our proposals” and would get back to us in the morning.

  Really? More time? The president himself has stated that he wants this thing settled and you need more time to consider two quite simple proposed solutions? But the House staff also said they wanted to discuss a plan that could include House Democrats.

  Hmm, maybe that is a good thing. Yes, and perhaps global peace is possible.

  Regardless of my skepticism, I remained hopeful. I should have known better.

  The following morning, Wednesday, May 24, 2006, I went to the White House to give the president his Homeland Security briefing. While waiting outside the Oval Office, I spoke to Fran Townsend, the Homeland Security advisor, and Michael Chertoff, the secretary of Homeland Security. Both Fran and Mike were former federal prosecutors. They were surprised that the Jefferson search had even become an issue.

  Following the security briefing, I remained behind in the Oval Office to speak with the president about the Jefferson matter. He pressed me hard again to find a resolution. I reminded him that it was best that the White House stay out of this matter.

  “Well, I’m worried for you,” the president said.

  “Oh, I’m not worried,” I replied.

  “I know you are not worried, but I am,” he said with a hint of a grin. I could tell President Bush was troubled by this situation. Josh had already informed me the president was concerned that Speaker Hastert might push for my resignation. Congress could also “punish” me through incessant investigations and subpoenas. Worse still, Congress held the power of the purse; they could easily defund certain programs that as attorney general I had been spearheading. Indeed, because financial appropriations begin in the House, they could slash our entire department’s budget.