No sooner did Alberto Gonzales resign as attorney general last month than he retained a high-powered Washington criminal-defense lawyer to represent him in continuing inquiries by Congress and the Justice Department.
Gonzales's choice of counsel, George Terwilliger—a partner at White & Case—is ironic if not surprising. A former deputy attorney general under the first President Bush, who later helped oversee GOP lawyers in the epic Florida recount battle of 2000, Terwilliger had been a White House finalist to replace Gonzales—only to be aced out at the last minute by retired federal judge Michael Mukasey.
The top concern for Gonzales, and now Terwilliger, is the expanding investigation by Glenn Fine, the Justice Department's fiercely independent inspector general, according to three legal sources familiar with the matter who declined to speak publicly about ongoing investigations. Originally, Fine's internal Justice probe—conducted in conjunction with lawyers from the department's Office of Professional Responsibility—focused on the mass dismissal of U.S. attorneys late last year. The investigation has since broadened to include, among other matters, charges that Gonzales lied to Congress about the Bush administration's warrantless surveillance program and the circumstances surrounding his late-night March 10, 2004, visit to the hospital room of then attorney general John Ashcroft. At the same time, Congress is continuing to pursue more documents on harsh CIA interrogation techniques approved by Gonzales.
Fine's investigators, who received high-level security clearances, have been interviewing key players involved in the now-famous bedside confrontation in Ashcroft's hospital room, according to the legal sources. During the visit that evening, Gonzales, then White House counsel, sought to persuade an ailing and heavily medicated Ashcroft to overrule department lawyers who had refused to sign off on classified surveillance activities ordered by President Bush because of concerns about their legality. A rash of senior Justice Department officials—including then deputy attorney general James Comey and FBI Director Robert Mueller—threatened to resign over the incident.
Yet when Gonzales appeared before the Senate Judiciary Committee in February 2006, he testified that "there has not been any serious disagreement" about the president's surveillance program. He did acknowledge disputes about "other intelligence activities" that he declined to identify.
One former administration official close to Gonzales's team (who, like others interviewed for this story, requested anonymity in talking about an ongoing probe) said the former attorney general is concerned that Fine may end up making a criminal referral to the Public Integrity Section of the Justice Department—or even seek the appointment of a special counsel to determine if Gonzales made false statements to Congress.
The former official—who did not believe such action was warranted—said that Gonzales's camp is increasingly worried that Fine might feel compelled to make such a move to avoid any suggestion that he was protecting his former boss and to reassert his independence. That would subject Gonzales to the unusual situation of being subject to a formal criminal investigation by the very department he used to head. "That is certainly one possible outcome of this," said the former official.
Terwilliger, who recently began discussions with Fine's investigators, confirmed to NEWSWEEK that he is representing Gonzales. But in an e-mail exchange, he declined to discuss any of the particular allegations against his client.
"We have been engaged to assist Judge Gonzales in his continued effort to provide assistance to the Department of Justice as it examines the Department's role in various programs and operations to combat the terrorist threat," Terwilliger wrote. "An unbiased assessment of the facts will show that Judge Gonzales, while holding high public office during a time of great peril, worked to help maintain the safety and security of the American people and acted always with the intent and commitment to honor the rule of law."
The stakes for Gonzales were ratcheted up last week when Jack Goldsmith, the former assistant attorney general in charge of the Office of Legal Counsel, testified before the Senate Judiciary Committee about the dispute. Goldsmith, a key player who was present when Gonzales and Andy Card, White House chief of staff at the time, showed up at Ashcroft's bedside. Goldsmith made clear that he, like others in the room, believed that the hospital meeting was indeed about the Terrorist Surveillance Program (TSP).
Asked by Democratic Sen. Charles Schumer what he made of the statement by Gonzales "that there was no serious internal dissent about the TSP," Goldsmith replied: "I would just say there were … enormous disagreements about many aspects related to the TSP." Goldsmith added, however, that "there is a technical interpretation of what he [Gonzales] said that is true … but it's very difficult to talk about it" in an unclassified setting.
Goldsmith's testimony echoed that of former deputy attorney general Comey and FBI Director Mueller. Like Goldsmith, Mueller has testified that he considered the hospital dispute to be about the Terrorist Surveillance Program—and his own contemporaneous notes indicated as much. But Gonzales's defenders have repeatedly said he was being extremely careful in his testimony because the underlying issues involved in the dispute—the particulars of the program that Goldsmith and others at Justice thought were in violation of the law—remain so highly classified that it was impossible for him to speak candidly. They and others have also suggested that, in part because of the Justice rebellion, aspects of the program were modified before its existence was publicly acknowledged by the White House. Therefore, they say, Gonzales was telling the truth when he said that there were no disagreements about the TSP "that the president has confirmed."
In recent days, the White House—seeking to gain a speedy confirmation for Mukasey and to win passage of new surveillance legislation from the Democratic-controlled Congress—has hinted that it may finally share key legal documents about the program with Capitol Hill. In a letter to the leaders of the House and Senate Intelligence and Judiciary Committees, White House lawyer Emmet Flood said the White House "has agreed to assemble" a stack of materials relating to the program, including "all legal opinions" by the Office of Legal Counsel—a category that would include the memo Goldsmith wrote in 2004 that triggered the hospital room incident. Noting that these documents include "extraordinarily sensitive national security information," Flood pointedly did not commit to turning over any of this material—only to continue talking to congressional leaders about them.
But the Democrats appear to be running out of patience. Their version of proposed new surveillance legislation, unveiled yesterday by House Majority Leader Steny Hoyer, contains a striking provision that would require Fine's office to do a full audit of all surveillance activities undertaken by the Bush administration since September 11, 2001—and then prepare a public, declassified report to be delivered to Congress six months after the law is passed. In a conference call with reporters Tuesday afternoon to discuss the Democratic bill, a Justice official said that this one of the provisions the administration has "concerns" about.