In her July 31 column “defending Attorney General Alberto Gonzales,” The Washington Post's Ruth Marcus wrote: “I don't think [Gonzales] actually lied about his March 2004 hospital encounter with then-Attorney General John Ashcroft. I certainly don't think he could be charged with -- much less convicted of -- perjury.” Marcus went on to question whether the July 26 testimony of FBI Director Robert S. Mueller before the House Judiciary Committee “really contradict[s] Gonzales or turn[s] him into a perjurer.” But Marcus did not quote Mueller's full statement, leaving out a key part in which Mueller affirmed the opposite of what Gonzales now claims.
In addition, Marcus focused exclusively on the question of whether Gonzales perjured himself regarding the hospital confrontation, while ignoring other aspects of Gonzales testimony that may constitute perjury. For instance, while Gonzales told the Senate Judiciary Committee on July 24 that a March 10, 2004, briefing for the congressional “Gang of Eight” concerned “other intelligence activities” as opposed to the warrantless domestic wiretapping program, an unclassified letter from then-Director of National Intelligence John Negroponte to then-Speaker of the House J. Dennis Hastert (R-IL) stated that the meeting was “on the Terrorist Surveillance Program,” the administration's preferred term for that NSA program. Gonzales also testified to the House Judiciary Committee that he had “not gone back and spoken directly with” those “involved” in the controversial firing of nine federal prosecutors, a claim disputed by former Justice Department official Monica Goodling. Both of these instances were noted by four Democratic senators in their request for the appointment of a special counsel to investigate Gonzales. However, Marcus made no mention of either issue in her column.
A July 27 Post article reported that Mueller, in his testimony before the House a day earlier, “contradicted the sworn testimony of his boss, Attorney General Alberto R. Gonzales, by telling Congress that a prominent warrantless surveillance program was the subject of a dramatic legal debate within the Bush administration.” As Media Matters for America has documented, this debate culminated in an attempt by then-White House counsel Gonzales to pressure then-Attorney General Ashcroft to approve “a classified program,” thought at the time to be the NSA warrantless wiretapping program. On that date, then-deputy Attorney General James B. Comey, who was acting AG as Ashcroft lay ill at a hospital, had refused to recertify the legality of the program. As the Post noted, during his testimony, Mueller confirmed that, based on a discussion he had with Ashcroft after Gonzales left Ashcroft's hospital room, the March 10, 2004, hospital room confrontation, which Mueller did not observe first-hand, concerned “an NSA program that has been much discussed.” From Mueller's July 26 testimony:
REP. SHEILA JACKSON LEE (D-TX): So my question to you, first of all: Did you ever speak with either Mr. Gonzales or Mr. [then-White House chief of staff Andrew] Card while they were at the hospital?
MUELLER: No, ma'am.
JACKSON LEE: And if you did not do that, did any of your agents speak to those individuals?
MUELLER: I don't believe so. We -- I arrived at the hospital after Mr. Gonzales and Mr. Card had left.
JACKSON LEE: The discussion -- and I don't know if you did arrive -- it was -- did you have an opportunity to talk to General Ashcroft or did he discuss what was discussed in the meeting with Attorney General Gonzales and the chief of staff?
MUELLER: I did have a brief discussion with Attorney General Ashcroft.
JACKSON LEE: I'm sorry?
MUELLER: I did have a brief discussion with Attorney General Ashcroft after I arrived.
JACKSON LEE: And did he indicate the details of the conversation?
MUELLER: I prefer not to get into conversations that I had with the attorney general. At the time, I -- again, he was entitled to expect that our conversations --
JACKSON LEE: And I respect that. Could I just say: Did you have an understanding that the discussion was on TSP?
MUELLER: I had an understanding that the discussion was on a NSA program, yes.
JACKSON LEE: I guess we use “TSP,” we use “warrantless wiretapping,” so would I be comfortable in saying that those were the items that were part of the discussion?
MUELLER: I -- it was -- the discussion was on a national -- a NSA program that has been much discussed, yes.
In her column, however, Marcus cited Mueller's assertion that the hospital room encounter concerned “an NSA program that has been much discussed,” but did not note that it came in response to Jackson Lee's question: “I guess we use 'TSP,' we use 'warrantless wiretapping,' so would I be comfortable in saying that those were the items that were part of the discussion?” Nor did Marcus note that Mueller added “yes” to his response. From Marcus' column:
We know, from Comey's account, that the dispute was intense. We don't know precisely what the disagreement was about -- and it makes sense that we don't know: This was a classified program, and all the officials, current and former, who have testified about it have been deliberately and appropriately vague.
In his May testimony, Comey referred only to “a particular classified program.” FBI Director Robert Mueller told the House Judiciary Committee last week that the hospital-room encounter was about “an NSA program that has been much discussed.”
Does this really contradict Gonzales or turn him into a perjurer? It's clear there was an argument over the warrantless wiretapping program. Comey refused to recertify it. In response, something about the program changed; Justice officials were willing to go along with the modified program.
The New York Times reported Sunday that the disagreement involved “computer searches through massive electronic databases” -- not necessarily the more-limited program the president acknowledged. As the Times put it, “If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales' defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct.”
After claiming that Gonzales' testimony regarding the hospital confrontation consisted of “technically correct linguistic parsing,” rather than perjury, Marcus criticized the Democratic senators for requesting the appointment of a special counsel to investigate Gonzales, asserting that the request had “more than a hint of maneuvering for political advantage”:
Congress deserves better than technically correct linguistic parsing. So the bipartisan fury at Gonzales is understandable. Lawmakers are in full Howard Beale mode, mad as hell at Gonzales and not wanting to take it anymore.
But perjury is a crime that demands parsing: To be convicted, the person must have “willfully” stated a “material matter which he does not believe to be true.”
The Supreme Court could have been writing about Gonzales when it ruled that “the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth” -- even if the answers “were not guileless but were shrewdly calculated to evade.”
Consequently, the calls by some Democrats for a special prosecutor to consider whether Gonzales committed perjury have more than a hint of maneuvering for political advantage. What else is to be gained by engaging in endless Clintonian debates about what the meaning of “program” is?