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Gonzales May Face Obstruction Charges in U.S. Attorney Probe
Saturday, 07 February 2009 11:50
by Jason Leopold

Leopold is the editor of The Public Record - www.pubrecord.org

A special prosecutor appointed to investigate the firings of nine federal prosecutors in 2006 has built a strong case against Alberto Gonzales that may result in obstruction of justice charges against the former Attorney General related to the role he played in the U.S. Attorney firings, according to attorneys directly involved in the probe and lawyers defending former Bush administration officials whose clients have met with the special counsel.

According to legal sources, over the past several weeks Gonzales's former chief of staff, Kyle Sampson, has provided damaging information to Special Prosecutor Nora Dannehy, an Assistant U.S. Attorney from Connecticut, about Gonzales. Sampson is said to have told the special prosecutor that Gonzales was far more engaged in the attorney firings than he had previously disclosed to Dannehy, in Congressional testimony and in interviews with Justice Department watchdogs.

Sampson, these sources said, is also facing obstruction of justice charges and the sources familiar with his interviews with Dannehy said he had provided detailed information about Gonzales's role in the firings in hopes of staving off the possibility of criminal charges he may face for his role in the dismissals. The legal standard for an obstruction of justice, conspiracy, and perjury charges is specific intent.

With that in mind, the legal sources added that although Dannehy has collected voluminous evidence over the past four months that would appear to suggest Gonzales and other Bush administration officials may have committed crimes related to the attorney firings--including perjury and conspiracy--it's also possible that criminal charges won't be filed if she believes she cannot prove intent.

However, Sampson is said to have provided Dannehy with an important piece of evidence that bolstered her case against Gonzales: the former Attorney General was aware of and helped create a list of federal prosecutors to fire.

In testimony before Congress in April 2007, Gonzales said he played no role in creating such a list and was unaware that anyone in his office had put such a list together.

"I have searched my memory," Gonzales said, in response to a question by Sen. Jeff Sessions (R-Alabama) about one meeting Gonzales attended in November 2006 when he discussed the firings. "I have no recollection of the meeting.... I don't remember the contents of this meeting."

But Sampson is said to have told Dannehy that Gonzales met regularly with White House officials in the Office of Political Affairs, headed by George W. Bush's former senior adviser Karl Rove, about the identities of the federal prosecutors that should be placed on the list and subsequently fired.

Several legal sources said Sampson described Gonzales as "very hands on" with regard to the U.S. Attorney firings. However, one snag that Dannehy has apparently hit is proving that any of the prosecutor firings were specifically intended to thwart public corruption cases, according to legal sources familiar with her probe. Carol Lam, the U.S. Attorney for the Southern District of California was in the midst of a corruption investigation involving associates of Randy "Duke" Cunningham, Republican congressman from San Diego, when she was fired.

Gonzales's attorney, George Terwilliger, did not return calls for comment Wednesday afternoon. Neither Sampson nor his attorney returned numerous calls for comment over the past week. Gonzales resigned as Attorney General in the summer of 2007.

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Additionally, Dannehy is said to have closed in on former Deputy Attorney General Paul McNulty and apparently has information that shows he allegedly perjured himself during testimony before Congress. McNulty testified before Congress in February 2007 that the prosecutor firings were "performance related," an allegation he knew to be untrue. Documents released by the Justice Department showed that Gonzales and McNulty participated in an hour-long meeting with Sampson and three other officials on Nov. 27, 2006 - about two weeks before the U.S. Attorneys were fired - to review the plan to fire them.

However, legal sources knowledgeable about Dannehy's probe said McNulty is unlikely to face any criminal charges about his role in the U.S. attorney firings.

Gonzales, meanwhile, has continued to downplay the seriousness of the prosecutor firings.

In an interview Tuesday with CNN, Gonzales characterized the scandal and the public's focus on it as "little negatives" and claimed, falsely, that a Justice Department watchdog report concluded that a majority of the dismissals were for "performance related reasons."

Gonzales told CNN that the report prepared by Inspector General Glenn Fine and H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility, "clearly found that there were performance related reasons for the removal of most of these U.S. attorneys and with respect to the remainder, they didn't have enough information to draw definite conclusions."

In an interview, Tuesday, David Iglesias, the former U.S. Attorney for New Mexico whose firing was deemed by the inspector general to be the most partisan of the nine, said, Gonzales "needs to shoot straight with the American people."

"Alberto Gonzales is showing the same remarkable disengagement he was criticized for by the Justice Department's Inspector General's report," Iglesias told me. "This time, he is disengaged from the official findings of fact. Far from being "little negatives", despite the good work that was done by the Justice Department, the Inspector General's Report officially found illegal political hirings of attorneys and immigration judges, an out of control Civil Rights section, and improper firings of U.S. Attorneys, myself included.

"The report, conducted by non-partisan, career investigators established our firings were "fundamentally flawed" and rejected "performance-related" reasons for seven out of nine U.S. Attorneys. In my case, the report examined and rejected every reason give for my firing as "disingenuous after the fact rationalizations." The Justice Department was a train wreck under the failed leadership of Gonzales."

Fine and Jarrett's joint report concluded that Iglesias's firing was the most "controversial" of the nine and that his dismissal was "engineered" by former New Mexico GOP lawmakers Sen. Pete Domenici, Rep. Heather Wilson and former White House political adviser Karl Rove over complaints about Iglesias's refusal to secure indictments in voter fraud cases and in a public corruption case.

The watchdogs' report said Bush and Rove "spoke with Attorney General Gonzales in October 2006 about their concerns over voter fraud in three cities, one of which was Albuquerque, New Mexico," and concerns Domenici had about Iglesias's job performance.

"There is conflicting evidence about exactly what was communicated to Gonzales, and what the Department's response was to these concerns," according to the report. "Gonzales testified that he recalled mentioning his conversation with Rove to [his former Chief of Staff Kyle] Sampson and asking him to look into the matter. Sampson told congressional investigators that he recalled that after the removals became public, Gonzales told him that he recalled the President telling him in October [2006] that Domenici had concerns about Iglesias."

People who used to work with Iglesias n the U.S. Attorneys office in New Mexico have met with Dannehy, according to people knowledgeable about the probe. But, "out of deference to the on-going probe," Iglesias declined to say whether he has met with Dannehy.

Fine and Jarrett did not have subpoena power and were unable to interview Bush administration officials in order to determine whether crimes were committed. Dannehy, however, has meticulously pieced together the rest of the narrative since former Attorney General Michael Mukasey appointed her special prosecutor last October.

In addition to Gonzales, Dannehy has also been scrutinizing former New Mexico Senator Pete Domenici and his ex-Chief of Staff Steve Bell, according to legal sources. But it's unclear whether Domenici or Bell is in any legal jeopardy as a result of their involvement in Iglesias's firing. Dannehy is probing whether Domenici and Bell pressured Iglesias to secure indictments against Democrats prior to the November 2006 midterm elections.

Last April, Domenici received a "public letter of qualified admonition" from the Senate Ethics Committee over a phone call he made to Iglesias about the timing of indictments prior to the November 2006 midterm elections.

Domenici, who said said had decided to retire from the Senate because he was sufferning from a brain disease known as frontotemporal lobar degeneration, or FTLD, a deterioration of brain tissue that can lead to personality changes, difficulty with speech and dementia, was named Monday as a senior fellow with the Bipartisan Policy Center.

In a news release issued Monday, the organization said Domenici will "provide counsel on all [Bipartisan Policy Center] initiatives, primarily working with the National Commission on Energy Policy (NCEP) focusing on nuclear and non-carbon forms of energy, and the National Transportation Policy Project (NTPP)."

According to the group's website, the center "was established in 2007 by former Senate Majority Leaders Howard Baker, Tom Daschle, Bob Dole and George Mitchell to provide a forum where tough policy challenges can be addressed in a pragmatic and politically viable manner. We seek to develop policy solutions that make sense for the nation and can be embraced by both parties," according to the group's website.

Attorneys for Domenici and Bell did not return calls for comment. Neither Domenici nor Bell cooperated with the investigation conducted by Justice Department watchdogs.

According to Fine and Jarrett's report, Bell "began complaining about Iglesias to the White House sometime in 2005."

Bell contacted Bush's former Chief of Staff Josh Bolten and asked him whether the White House could intervene and have Iglesias removed, according to the Fine and Jarrett's report.

Bolten did not cooperate with the DOJ watchdogs' probe. It's unknown whether Dannehy has spoken to Bolten. Congress subpoenaed him and former White House Counsel Harriet Miers, who also refused to cooperate with the DOJ probe, last year for documents and testimony about their roles and the White House's involvement in the U.S. Attorney firings. Both were advised by Bush to ignore the congressional subpoena on executive privilege grounds, a position Bush said extends beyond his presidency. It's also unknown whether Dannehy, who has subpoena power, has spoken to Miers or whether Dannehy has obtained internal White House documents from Bolten and Miers to assist her probe.

Although Miers' refusal to cooperate "hindered" the 18-month investigation, Fine and Miers were able to piece together enough evidence to conclude that Miers likely played a role in the firing of John McKay, U.S. Attorney for the Western District of Washington.

According to the report, McKay's firing was due, in part, to the fact that he would not convene a federal grand jury and secure indictments of alleged voter fraud in the 2004 governor's race in the state in which Democrat Christine Gregoire defeated Republican Dino Rossi by a margin of 129 votes.

In an interview two years ago, McKay said some Republicans in his district with close ties to the White House demanded that he launch an investigation into the election and brings charges against individuals for voter fraud. But McKay concluded there was no evidence to support the suspicions.

McKay also said he believes he was not selected for a federal judgeship by local Republicans in Washington State last year because he did not file criminal charges against Democrats.

McKay said he requested a meeting with then-White House Counsel Miers to discuss the matter.

"I asked for a meeting with Harriet Miers, whom I had known since work I had been involved in with the American Bar Association, and she immediately agreed to see me in August of 2006," McKay told me.

McKay said that when he met with Miers and her deputy William Kelley at the White House, the first thing they asked him was, "Why would Republicans in the state of Washington be angry with you?"

That was "a clear reference to the 2004 governor's election," McKay said in characterizing Miers's and her deputy's comments. "Some believed I should convene a federal grand jury and bring innocent people before the grand jury."

The meeting with Miers and Kelley did not have a positive impact on McKay's request to be appointed a judge at U.S. District Court. Instead, McKay said it appears that he landed on the list of U.S. Attorneys to be fired just a few weeks after his meeting with Miers and Kelley.

Moreover, according to the report, Miers was involved in pushing out Bud Cummins, the U.S. Attorney for the Eastern District of Arkansas.

Bell, Domenici's former chief of staff, also lodged his complaints with Scott Jennings, Deputy Director of the White House Office of Political Affairs. Jennings told DOJ investigators "that shortly after joining the White House in early 2005, he received criticism of Iglesias's performance as U.S. attorney from Bell"

"Jennings said Bell told him on a periodic basis that he was unhappy with Iglesias's response to complaints about voter fraud, among other issues, and that the White House should replace him. Jennings said he passed that information along to his immediate superiors at the time, [White House Director of Political Affairs Sara] Taylor and [Tim] Griffin."

On Nov. 7, 2006, the day of the midterm elections, Bell emailed Rove about problems with ballots at a precinct in New Mexico and said, "we worry about the [U.S. Attorney] here."

Rove responded to Bell's Nov. 7, 2006, email by saying that Domenici should "call the Attorney General about this."

According to the report, Iglesias's name was placed on a termination list around this time.

"It appears that Sampson put Iglesias on the removal list sometime after October 17 [2006] based largely on complaints about Iglesias's handling of certain voter fraud and public corruption investigations in New Mexico," according to the report. "Sampson said he knew that New Mexico Republican Senator Pete Domenici had called Attorney General Gonzales on three separate occasions in 2005 and 2006 to register complaints about Iglesias's performance."

Dannehy will brief newly installed Attorney General Eric Holder sometime over the next week, according to Justice Department sources. Her probe will likely wrap up sometime in March, these sources said.
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