True Faith and Allegiance

by Alberto R. Gonzales

  I acknowledged the seriousness of the situation and expressed my appreciation. I told him we were still waiting to hear how the House might respond to our latest offers but that we’d keep working on it.

  I waited patiently all morning long, but still no answer came from the House of Representatives. We checked with Candi Wolff, and she reported that she’d heard nothing either, but that Scott Palmer, Dennis Hastert’s chief of staff, was holed up on the Hill working through our options.

  Meanwhile, Congressman Jefferson’s attorneys filed a motion with Judge Hogan, demanding the documents be returned.

  That afternoon, I attended a three-hour-long meeting at the White House with other cabinet officials regarding hurricane preparedness measures. That was nothing new; the government had conducted such exercises long before Katrina, but the devastation of that storm reminded all of us that our time was not being wasted.

  Around 4:00 p.m., while I was still at the Old Executive Office Building across from the White House, I received an urgent call from Kyle Sampson. He told me that Speaker Hastert and Nancy Pelosi had just issued a joint public statement demanding the seized Jefferson documents be returned to the congressman, and that the search warrant must be vitiated and no member of the search team could be a part of the prosecution team.

  I was stunned. First, because their public demands were outrageous, but even more so because we had been blindsided. At Justice, we had been trying to play fairly, thinking that the House leadership was using this time to evaluate our proposals and would come back with suggestions for resolution. That was not the case at all. They had been using the time to line up allies on the other side of the political aisle who obviously would join forces with the Republicans to protect their fellow Democrat. The political gamesmanship angered me.

  I returned immediately to the DOJ, where I was again informed that the congressional leaders demanded the seized documents be returned.

  I refused.

  McNulty was already in his conference room, along with Kyle Sampson, Mike Elston, Bill Mercer, Alice Fisher, and Will Moschella. Their mood was somber and their discouragement almost palpable. We had to develop another plan.

  I knew it was only a matter of time before Josh called on behalf of the president. What I did not know was that earlier that afternoon, Paul McNulty and Scott Palmer had engaged in another heated conversation over the Jefferson matter. Paul had urged Palmer to think about the long-term ramifications of what the House was asking the FBI and the Justice Department to do.

  Then at some point in their conversations, Paul insisted that nobody wanted another Saturday Night Massacre, alluding to the DOJ resignations during the Watergate investigation. Candi Wolff had been on the call as well, and apparently she reported the threat of DOJ resignations to the White House. That was not good. The president and I had lived through resignation threats over the Stellar Wind surveillance program, and they were abhorrent to us then. I knew he would not be happy to hear that the resignation issue had resurfaced at DOJ.

  Not surprisingly, Josh called shortly thereafter. The tone of his voice was different than it had been during our previous calls. Now he sounded less friendly, more businesslike, more of the authoritarian tone of a chief of staff.

  I knew this was difficult for Josh. He and I were friends; moreover, he knew that the president and I were friends. But I had made a decision that had infuriated one of the White House’s most important allies in the political/legislative realm, and I understood that Josh had to protect the interests of the president and the institution of the presidency.

  I suspected that the president wanted the documents returned. This whole incident had become an unnecessary irritation. Yet I assumed two roadblocks prevented the president from ordering me to return Jefferson’s documents. First, this was an ongoing criminal investigation. I hoped that the White House would be reluctant to order prosecutors to do something that would interfere with an investigation of a member of Congress. I understood that the White House did not want the documents returned simply to protect Jefferson. Nor did they intend in any way to obstruct justice. White House lawyers simply believed the search was questionable.

  Second, I guessed that my long relationship with the president, as well as the White House staff, caused them to pause and might have bought the DOJ some time. But obviously that clock was ticking too.

  Josh probed the resignation issue. “I’ve heard some disturbing reports about resignations,” he said, “and I hope that is not true. But if it is, I hope you will tell me first.” Ever the master of understatement, Josh continued, “It appears things are not moving in a positive direction.”

  I tried to reassure Josh that I was not aware of any serious discussion of mass resignations at DOJ. “Paul’s comment was unfortunate, but it does not reflect the feelings of the department.” That seemed to ease Josh’s mind slightly, but it did nothing to soften his response. Without actually saying the words, Josh signaled to me that the president would order that the documents be returned. He was careful not to give me that order over the phone, but it was clear that he was doing everything but speaking the words. Perhaps Josh was hoping that I would fall on my sword and as attorney general, order that the FBI return the seized documents.

  I could not do that, and I would not. If I backpedaled from the DOJ position at this point, the political appointees and the career lawyers in the department would regard it as capitulation to the White House. I told Josh that unless there was some evidence of wrongdoing by the prosecution team that had conducted the search, I could not voluntarily return the documents to a defendant in the middle of a criminal investigation. I did not understand the urgency to return the documents when the question regarding the legality of the search was now in the courts.

  I reiterated to Josh, “The president could certainly order the documents to be returned, but I hope that he won’t.” As the former White House counsel, and as the president’s friend, I emphasized that I thought it was unwise for the White House staff to have the president involved in decisions about a criminal prosecution.

  After Josh and I hung up, I thought further about McNulty’s regrettable comment about resignations. The president had been on the receiving end of similar threats during the tense discussions regarding Stellar Wind, and I recalled how angry he had been that his subordinates were trying to force his hand. I guessed that these latest veiled threats from DOJ were eliciting the same sort of response.

  Walking over to Paul’s office, I stopped by the office of David Margolis. David was a career Department of Justice employee with more than forty years of experience in the DOJ. His office was like a museum, filled with everything from baseball cards to Justice memorabilia, posters, and pictures. I often stopped in, and if he was not there, I left him notes, facetiously questioning why he was not at his post. I liked David and respected his judgment.

  Margolis was aware of the Jefferson situation and we talked briefly about the recent developments. “What I don’t understand,” David said thoughtfully, “was how your advisors allowed you to get into this position.”

  I nodded and told him that the decision had ultimately been mine, and I had made it. Nevertheless, David’s point registered with me.

  I visited with FBI director Bob Mueller for his views on Jefferson’s seized documents. “Your instincts are correct,” he told me. “You should not voluntarily turn over the documents to Jefferson or to the House.” We talked briefly about what might happen. “It would be better for you and for the department if you were ordered by the president to return the documents.” Bob was reaffirming my position.

  He then said something that I had never consciously considered, but the possibility troubled me. The director of the FBI said that even if the president ordered the documents be returned, the documents were with him, and he wasn’t sure he could, as a matter of principle, comply with such an order. “I might have to resign,” Bob said.

  The director’s comment hit me hard. He might ha
ve simply been expressing support for the DOJ position in the case, but as I looked at the strong-jawed, former marine, I had little doubt that he would seriously consider resigning rather than returning the documents confiscated by the FBI.

  For the first time since the matter began, I accepted the real possibility that should the president order the documents returned, and Mueller as the head of the FBI responded by resigning, as Mueller’s boss, I’d have few options other than to resign as attorney general.

  Kyle Sampson reported that after another tough call with Joel Kaplan, the White House deputy chief of staff, he’d been asked to meet that night at 7:00 p.m. As a parting word, I told Kyle to remind Joel that the president should never negotiate with subordinates in the executive branch. He was in charge. If the president ordered that the documents be returned, I would ensure that the order was carried out.

  I felt strongly that nobody at DOJ should act in an insubordinate manner by threatening to resign. If you disagree with a policy and you cannot live with it, fine, resign, but don’t attempt to hold the chief executive hostage by threatening to resign.

  I did not discuss possible resignations with Kyle, but as the evening wore on, with no resolution, I found myself thinking more about those scenarios.

  I was still working in my office when around 10:00 p.m., Paul McNulty reported to me that Scott Palmer, the Speaker’s chief of staff, had suggested a thirty-day stand down, to allow Congress to pass legislation that could deal with congressional search issues such as the Jefferson case. I was encouraged by Palmer’s calmer idea, especially since it was consistent with our earlier proposals.

  The tide of public opinion was incrementally swinging in favor of the Department of Justice. News stories critical of the Speaker and the House’s position appeared in the press. Even some members of Congress questioned publicly whether the House position made good sense.

  Complicating matters, unfortunately, was that some of the press coverage was distorted. For instance, ABC News ran a story claiming that Speaker Hastert was under investigation. The story angered me because I worried that the Speaker might conclude that DOJ had leaked it in retaliation for his going public. That had not happened, and I ordered that we deny the story, which we did. Palmer asked McNulty to issue additional public denials, and we did that too.

  It was nearly 11:00 p.m. by the time Kyle Sampson returned from his White House meeting and the news was not good. Our team met in McNulty’s conference room, and Kyle delivered the message from Josh Bolten: the president wanted the documents returned. I was surprised, given my earlier, encouraging conversations with Josh.

  “What are you going to do?” several members of our team asked me, perhaps gauging their own responses according to mine.

  “I don’t know,” I responded honestly. “Right now I’m just going to go home and talk with my wife.” Although Becky had been ready to return to Texas for a couple of years now, this was not the exit plan we had envisioned. Nevertheless, there was a real possibility that tomorrow might be my last day as attorney general, so I wanted to talk it through with her.

  I arrived home at nearly one o’clock in the morning, and Becky was still waiting up for me. I was tired and dispirited. “I think the end is near,” I told her disconsolately. “I’m probably going to receive an order from the president in the morning, and as a result, I will probably have to resign.” I briefly explained the issues surrounding the search of Congressman Jefferson’s office.

  Becky didn’t ask too many questions about the details of the case. She simply said, “It will be their loss.” She hugged me and said, “I’m with you whatever you decide to do.”

  I admitted to her that I was disappointed at the lack of support I had received from the White House on the Jefferson matter. That stoked the fires in Becky’s eyes too. “I’m angry that nobody in the White House is strongly advising President Bush to let the prosecution run its course and let the chips fall,” she said.

  I shrugged. I agreed with her, but there was nothing left for me to do. It was hard to maintain faith, but we prayed together, asking God for wisdom. I went to bed thinking about what I might say in my resignation letter.

  CHAPTER 33

  WRONG EVEN WHEN RIGHT

  When my alarm clock went off on Thursday morning, May 26, I rubbed the sleep out of my eyes. I’d been in bed a few hours. Nevertheless, I felt alert and ready to get back in the office by 6:00 a.m. I thought, This might be my last morning as attorney general. I’m going to make the best of it. When I arrived at my office, I penned my resignation letter to the president, informing him that I would see that his orders were carried out, but I had to resign. It was not an easy letter to write. President Bush had been good to me, and I knew my resignation might raise difficult issues for him.

  Kyle came into the office sometime around 7:00 a.m., and we talked briefly about what the day might bring. I then called Bob Mueller to give him a heads-up that the president was likely to direct the Department of Justice to return the seized documents to Congressman Jefferson.

  “I’m surprised it has come to this,” Bob said. “I’ll talk to Josh Bolten after the 7:45 a.m. national security briefing with the president.”

  “Okay, good,” I said. “I won’t be there.”

  “I’m not sure I can return the documents,” the FBI director told me. “I might have to be fired.”

  By now, the tide of public opinion had swung clearly in our favor. News commentators, scholars, and more members of Congress questioned Speaker Hastert’s position. I felt vindicated, but it appeared too little too late.

  At 8:25 a.m., Josh Bolten called me to tell me that the president would be available to speak to me privately at either 8:35 a.m. or 10:50 a.m. “I have a National Missing Children’s Day event coming up later this morning,” I told Josh. “I’ll be right over.” I placed the resignation letter in my inside coat pocket and climbed into the waiting black Suburban along with the FBI Security Detail. Sitting in the back right passenger’s-side seat, I gazed out the window as the detail driver whisked us through the Washington traffic and over to the White House.

  When I arrived, I met Bob Mueller in the West Wing basement as he was returning to the FBI building. Bob informed me that he had just talked with Josh Bolten and had emphasized that returning the documents in the middle of an investigation would be a terrible miscalculation. It would embarrass the Department of Justice and set a bad precedent. Mueller told me that he had informed Josh that should the president demand the documents returned, as a matter of principle, as the FBI director, he was not sure he could carry out such an order. He might have to resign.

  I didn’t say anything to Bob about his statement, but I really regretted that he had raised the resignation possibility directly to the chief of staff. I heard echoes of 2004 DOJ resignation threats related to Stellar Wind in my mind again. I felt strongly that the president should never be threatened by subordinates, and both Bob and I served at the pleasure of the president.

  As I walked into the Oval Office, Vice President Cheney, Steve Hadley, and Josh walked out. The president remained alone, sitting at his desk, so I sat in a chair near his desk.

  “We’ve been through a lot together,” I reminded the president.

  He laughed and said, “Yes, but this is the worst one yet.”

  “It doesn’t have to be,” I responded.

  It struck me odd that he could think this was the worst issue we had dealt with together. The dispute with the Speaker involved a legal question—a delicate matter, to be sure, but still, a relatively easily solvable issue, compared to the many major legal questions we had faced together regarding the war on terror. Moreover, it would probably be solved in the courts, so there was no constitutional crisis in play.

  “I believe that part of my job is to not create problems for you,” I said. “The decision to search was right and necessary,” I explained, “but I know it created an awkward situation between you and the Speaker. For that, I am sorry
.”

  The president waved his hand. “Don’t worry about that,” he said.

  I went on, “When we met earlier this month in the Situation Room, you said you would support me.”

  The president nodded at my reminder but did not respond, so I continued. “But the White House has undercut me. At the very time you urged me to work out a solution with the House leadership, the House had no incentive to agree on a deal because they knew the White House would eventually order the documents returned. This has been very disappointing.”

  “Well, Fredo, I have to take into consideration more than law enforcement. I have to also consider comity between the three branches of government.”

  I assured him that we had tried to consider such matters as well. Nevertheless, we were undercut by his people in the White House. “My judgment was being questioned by people in the White House,” I said, “and that really bothered me.”

  The president seemed to understand my perspective, and did not attempt to correct my assumptions that I had been undercut by people in the White House. He moved on to the matter of resignations, mentioning the possibility before I did.

  “I don’t want you to resign,” he said to me, looking me right in the eyes. “It makes no sense.” He paused as though thinking about that possibility, then said, “Besides, we are in the middle of fighting a war on terror. You need to stay.” He reassured me that I would continue to be effective at Justice. “I will make it clear that you still have influence at the White House,” he said.

  I said nothing, but my resignation letter was burning a hole in my coat pocket.

  The president continued talking about McNulty’s subtle threat of resignations. That made him look weak, he stated. He also complained about Mueller possibly resigning. “Bob is stubborn and has threatened to resign before,” the president said.