Just when it seemed that Attorney General Alberto Gonzales' reputation on Capitol Hill couldn't possibly get much worse, he showed up Tuesday for yet another hearing. And as with so many of his recent appearances before Congress, his testimony before the Senate Judiciary Committee raised a lot more troubling questions than it answered not just about his own conduct of and honesty about the U.S. attorney firings, but also about the Administration's domestic intelligence gathering programs.
That new wrinkle stemmed from Gonzales' testy exchange with Senator Arlen Specter, the panel's top Republican. Specter opened up with former Deputy Attorney General James Comey's testimony to the panel in May over Gonzales' actions while serving as White House Counsel. Comey had alleged that Gonzales tried to convince an ailing Attorney General John Ashcroft, who was in the hospital recovering from gallbladder surgery, to sign off on Bush's warrantless wiretapping program. "There are no rules saying he couldn't take back authority," Gonzales said, trying to explain that they had hoped Ashcroft might be able to sign off on an intelligence program due to expire the next day, a program that Comey as acting AG had refused to renew.
But what Specter really wanted to know was how that meeting squared with Gonzales' previous testimony that there had been no serious internal disagreements over the program. Gonzales seemed to believe he had a simple explanation. "The disagreement that occurred was about other intelligence activities, and the reason for the visit to the hospital was about other intelligence activities," the Attorney General said. "It was not about the terrorist surveillance program that the President announced to the American people."
Both Specter and later Senator Chuck Schumer latched onto Gonzales' puzzling comment. Schumer in particular brought up several examples where in sworn testimony Gonzales has named the Terrorist Surveillance Program as the one at issue during the hospital visit to Ashcroft's room. Committee Chairman Patrick Leahy then ordered a complete review of Gonzales' statements to the committee. "This is such a significant and major point," Leahy said. "There's a discrepancy here in sworn testimony and we're going to find out who's telling the truth."
Specter later circled back to Gonzales on the matter, warning him: "My suggestion to you is you review your testimony to find out if your credibility has been breached to the point of being actionable," Specter said. The maximum penalty for being caught lying to Congress is five years in prison and a fine of $250,000 per count. Specter wryly noted to reporters during a break that there is a jail in the Capitol complex.
Senator Jay Rockefeller, the top Democrat on the Intelligence Committee, who was involved in the briefings at the time of the hospital visit, said the so-called Gang of Eight the eight top bipartisan members of Congress on intelligence issues were not briefed about any sunset the program was facing, as Gonzales claimed. He also emphatically refuted Gonzales' statements that there was more than one program under discussion at the time and that the Gang of Eight had agreed the program was so important that if it had been allowed to lapse they were considering emergency legislation.
"Once again he's making up something to protect himself and creating situations that never happened," Rockefeller said, adding that "based on what I know about it, I'd have to say" Gonzales has committed perjury.
Gonzales' woes actually began even before he was sworn in. He took his seat as a protestor held a pink banner reading "Impeach" behind him and to yells of "Impeach him!" from protestors in the room, who were quickly escorted out. Specter threatened the appointment of a special prosecutor to look into the firings of the eight U.S. attorneys last year and a Senate "trial" to hold in contempt those Administration officials refusing to comply with Senate subpoenas. Then Leahy gaveled in the proceedings, saying "the Attorney General has lost the confidence of the Congress and the American people." (When asked about Specter's threat of holding a Senate trial on contempt citations, Senator Trent Lott, the No. 2 Senator Republican, said he didn't "believe that's necessary," adding he intended to speak with Specter about the issue.)
In his opening statement, Gonzales underlined all the important work the department is still engaged in, highlighting its hunt for sexual predators and its role in the war on terror. But when asked by Senator Herb Kohl, a Wisconsin Democrat, if his presence is more detrimental than helpful Gonzales said: "Ultimately, I have to decide is it better for me to leave: I've decided to stay and fix the problem and that's what I'm doing," he said over guffaws from hearing attendees. "We're bringing in good, experienced people. We've changed policies, we've been made aware with some of the problems with our policies."
Much of Gonzales' time was spent telling the committee he couldn't remember, wasn't up to date or wasn't at liberty to discuss the details on everything from the department's controversial settlement with the makers of OxyContin, a drug believed responsible for dozens of deaths, and his consideration of death penalty cases to his involvement in drafting U.S. torture guidelines while working at the White House and why he apparently lied to a Senate panel over President George W. Bush's warrantless wiretapping programs.
When Specter asked Gonzales whether the President has the right to prohibit the Department of Justice from pursuing Congressional charges of contempt against former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten the House Judiciary Committee tomorrow is expected to issue two contempt citations for their refusal, citing executive privilege, to comply with subpoenas to testify Gonzales had a short lawyerly response. "I am recused of speaking on that matter due to the ongoing investigation," he said.
Later, when Senator Diane Feinstein, a California Democrat, asked how many names were on the list of U.S. attorneys to be fired that he approved, he said he couldn't recall. "After all this time and all of the investigations into this, I find it hard to believe you can't remember," Feinstein quipped. "I'll have to get back to you on that," Gonzales said.
He couldn't remember answers for even the rare friendly inquisitors. After Senator Orrin Hatch, a Utah Republican, tried to prod him about how long Comey was in Ashcroft's room hinting that maybe he hadn't really been present for much of the conversation Gonzales replied, "I don't remember."