Omertà (or a code of silence) has become the final bond holding the Bush administration together. Honesty is dishonorable; silence is manly; penitence is weakness. Loyalty trumps law. Protecting higher-ups is patriotism. Stonewalling is idealism. Telling the truth is informing. Cooperation with investigators is cowardice; breaking the code is betrayal. Once the code is shattered, however, no one can be trusted and the entire edifice crumbles.
Last week, for example, the Washington Post reported that William R. Steiger, director of the Office of Global Health Affairs in the Department of Health and Human Services, suppressed the 2006 “Call to Action on Global Health” report of U.S. Surgeon General Richard Carmona, which explained the connection of poverty to health and urged that attacking diseases become a major U.S. international commitment. Steiger, who has no credentials in the field, is the son of a former congressman who was Vice President Cheney’s earliest patron, giving Cheney his first congressional job as a staff intern. At the White House’s behest, Steiger acts as a micromanaging political commissar. His insistence on approving every single overseas appointee of the Centers for Disease Control and Prevention has left many of its posts empty. “Only 166 of the CDC’s 304 overseas positions in 53 countries are filled,” the Atlanta Journal-Constitution reported in April. “At least 85 positions likely will remain unfilled until 2008.” Such is the theory of the unitary executive in action.
Just this week, Jeffrey Toobin wrote in the New Yorker about the suspicion that fell on the U.S. attorney in Washington state, John McKay, who was fired in the wholesale purge because of his interest in devoting full resources to an investigation of the murder of an assistant U.S. attorney, Tom Wales, who had been a prominent local advocate of gun control. On July 31, the U.S. attorney in Roanoke, Va., John Brownlee, testified before the Senate Judiciary Committee that the night before a guilty verdict was delivered in his case against the drug manufacturing company that produced OxyContin, he received a call from a Justice Department official asking him to slow down his prosecution.
On Wednesday, Bush prepared to invoke executive privilege to protect his senior political aide, Karl Rove, and Rove’s deputy, J. Scott Jennings, from testifying before Congress on the firing of the U.S. attorneys. Bush has already covered his chief of staff, Josh Bolten, and former counsel Harriet Miers with executive privilege to prevent their testimony. The House Judiciary Committee responded by citing both for contempt of Congress, which requires action by the U.S. attorney of the District of Columbia. But the Justice Department has declared that it will thwart that process, in effect rendering the nation’s system of justice a political arm of the executive.
Bush has steadfastly refused to fire Attorney General Gonzales, even though Gonzales’ former chief of staff, Kyle Sampson, directly contradicted Gonzales’ testimony before the Senate Judiciary Committee that he knew nothing about the purge of U.S. attorneys and by documentation that Gonzales’ claim that they were dismissed for “performance” was a politically contrived excuse. In protecting Gonzales, Bush is shielding the true author of the purge — Rove, who informed and received the approval of Bush himself.
Last week, after Gonzales had testified for the second time before Congress that there was no internal dissent against the authorization of warrantless domestic spying, FBI Director Robert Mueller testified before Congress that Gonzales’ statement was false and offered himself as proof of someone who had opposed the program that Gonzales said had won universal support. James Comey, the deputy attorney general in Bush’s first term, had described the now-infamous “Enzo the Baker” scene of March 2004, when Comey, serving as acting attorney general, and Mueller rushed to a Washington hospital to intercept then White House counsel Gonzales, who tried to browbeat Attorney General John Ashcroft, drugged and in pain after emergency surgery, into signing his approval of the wiretapping. Ashcroft refused. Comey confronted President Bush on the program’s illegality and it was modified. Yet, in his latest testimony, Gonzales not only contradicted Comey’s version but also claimed that the operation was about “other intelligence activities.”
Gonzales’ unashamed performance prompted senators to demand that the second-ranking Justice Department official, Solicitor General Paul Clement, appoint a special prosecutor to investigate Gonzales’ potential perjury, and members of the House to file a resolution asking the Judiciary Committee to launch impeachment proceedings.
The mystery surrounding Gonzales’ position deepened with the bizarre attempted defense of Gonzales offered by Michael McConnell, director of national intelligence, who sent a letter Tuesday to Sen. Arlen Specter, R-Pa., explaining that the warrantless wiretapping was part of a much larger surveillance program authorized by a single executive order of the president. If this is true, then Gonzales’ past efforts to describe the policy as narrow and relatively small are false. This defense, therefore, provided grist for further incrimination and failed to shine any light on Gonzales’ patently misleading testimony.
Gonzales is a unique figure of disrepute in the history of the Justice Department, a cipher, enabler and useful idiot who was nonetheless indispensable in the rise of his patron and whose survival is elemental to that of the administration. Warren G. Harding’s attorney general, Harry Daugherty, trailing accusations of bribery for which he was never indicted, resigned after Harding’s death. Daugherty had been one of Harding’s creators as the Republican Party chairman of Ohio. Two of Richard Nixon’s attorneys general resigned in disgrace during the Watergate scandal, both significant political men: John Mitchell, Nixon’s former law partner and campaign chairman, and Richard Kleindienst, an important player in the Barry Goldwater wing of the Republican Party of Arizona.
Gonzales earned the gratitude and indebtedness of Bush in 1996, when he enabled him to escape jury duty in Travis County, Texas, on the attenuated argument that as governor he might find himself in a conflict of interest in the future when considering a clemency or pardon. In fact, Bush’s worry was filling out the juror’s form that required listing arrests. By avoiding acknowledgement of his drunken-driving violation, Bush maintained his political viability. Grants of clemency and pardons never bothered Bush again. Of the 152 people condemned to execution in Texas during his tenure, the most under any governor in modern American history, he indulged in not a single act of clemency. His counsel, Alberto Gonzales, briefed him on 57 of these cases, and “repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence,” according to a study published by the Atlantic.
As White House counsel, Gonzales served as a figurehead and rubber stamp for the radical views of Cheney and the legal neoconservatives on questions of executive power ranging from torture to domestic spying. Gonzales routinely signed the memos written by John Yoo and other ideologues and pushed the executive orders drawn up by Cheney’s counsel, David Addington, on to the president for his signature.
Though Gonzales has nary a shred of credibility, even among Republican senators, his continued existence as attorney general is necessary to the preservation of the Bush White House. He is the firewall for Rove — who issued his ultimate marching orders in the U.S. attorney firings — and Bush. So Bush adamantly stands by him, covering Rove and the others with executive privilege.
Bush cannot afford to have Gonzales resign or be removed. Gonzales’ leaving would ratchet up the administration’s political crisis to an intense level. Bush could not nominate a replacement without responding to the Senate Judiciary Committee’s inevitable request for information on every matter that he has attempted to keep secret. On every unresolved and electrified issue the Senate would demand documents — the entire cache on the development of policy since 2001 on torture, the gutting of the Civil Rights Division, the U.S. attorneys and much more. Only Gonzales’ perpetuation in office holds back the deluge.
Yet there is still another opening for Congress to explore that only became apparent in an editorial published in the New York Times on July 29. After observing that in March 2004 “the Justice Department refused to endorse a continuation of the wiretapping program because it was illegal,” the Times revealed, almost in passing, “Unwilling to accept that conclusion, Vice President Dick Cheney sent Mr. Gonzales and another official to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.”
“Cheney sent Mr. Gonzales … “
This disclosure had not previously appeared anywhere else in print, including the news pages of the Times. Yet the Times’ editorial page published it as indisputable fact. On Tuesday, the guest on CNN’s “Larry King Live” was none other than Vice President Cheney. King asked Cheney about the Times’ report about his order to Gonzales. “I don’t recall,” replied Cheney in a classic nondenial denial. “That would be something you would recall,” King continued. “I would think so,” said Cheney. “But certainly I was involved because I was a big advocate of the Terrorist Surveillance Program.”
But under what authority did the vice president give this order to the then White House counsel? That is not a matter for editorial writers, but for Congress.
The Office of the Vice President has the most limited legal and constitutional power over the Justice Department. It can have input on an extremely narrow range of political policies, but absolutely none in operational matters. Yet the Times reports that Cheney sent Gonzales to pressure the attorney general to sign off on warrantless wiretaps. Why would a White House counsel act on a vice president’s orders? And what else did Cheney’s office do to influence the Justice Department over the past six years? Nothing is known beyond that one line in the Times.
We know nothing about the domestic wiretapping program, especially if it is as extensive as National Intelligence Director McConnell suggests. Only a congressional investigation can settle suspicions. When he was a congressman, Cheney notoriously defended the conduct of Oliver North in the Iran-Contra affair as an aspect of executive power of which he approved. After North testified before the joint congressional committee investigating the scandal, Cheney declared that he was “the most effective and impressive witness certainly this committee has heard.” In the minority report on Iran-Contra written under Cheney’s aegis, the congressional role in overseeing foreign policy was contemptuously dismissed: “If they interfere with the core presidential foreign policy functions, they should be struck down.” In the theoretical discussion of his view of the executive, it may be forgotten that North, whom he so passionately defended, had gotten the Washington field office of the FBI to wiretap the sources of the congressional investigators who were probing his activities. Fawn Hall, North’s secretary, at his March 1989 trial delivered a line that summarized the entire affair and presciently anticipated certain Bush administration policies. “Sometimes you have to go above the law.”
Now, in light of the Times’ revelation of Cheney’s order to Gonzales, the relevant committees of Congress are justified in requesting or subpoenaing documents from the Justice Department about the intrusion of the Office of the Vice President into domestic legal matters. The trail of what happened from 2001 to the present will be visible, to the extent it remains a record, embedded in e-mail communications and memorandums from the OVP to the Justice Department or in internal memos referring to such communications. Requesting them from the department end rather than the White House makes any claim of executive privilege hollow regarding departments or agencies outside the White House itself. The Justice Department has already cooperated with Congress in turning over documents. Why would it suddenly now refuse?
If executive privilege were to be applied in this instance to the Justice Department, then the unitary theory of government in which all power resides in a single vessel, a great Decider, would render the Constitution’s grant of powers to three branches of government defunct.
Even Nixon, in asserting executive privilege in the heat of the Watergate scandal, did not claim that it applied to decisions made in the Justice Department. Attorney General John Mitchell, found guilty of perjury and obstruction of justice, could not be protected from prosecution for his part in what he called the “White House horrors.”
Dick Cheney, the greatest exponent of the Nixonian concept of the presidency, more successful than Nixon, has usurped in his grasp of executive power even command of domestic legal policy. But we have seen only a flicker of a shadow of his power. And Bush knows that Rove, too, has played puppet master. Losing Gonzales would raise the curtain on this era’s “White House horrors.” So Bush throws executive privilege over everyone he can. The yes man has become the indispensable man.