Murky Legal Trail in DOJ Case

Posted May 25, 2007 at 5:41pm

Last week, Sen. Sheldon Whitehouse (D-R.I.), a former federal prosecutor, pointed to ways in which the Capitol Hill probe into top Justice Department officials quickly could cross the line into a criminal investigation.

Stressing that Congress still did not have all the facts, Whitehouse identified the conversation between former Justice Department aide Monica Goodling and Attorney General Alberto Gonzales as potentially legally problematic.

In testimony last week before the House Judiciary Committee, Goodling called the mid-March goodbye tête-à-tête with her former boss “uncomfortable” because Gonzales recounted his version of events leading up to the dismissal of nine U.S. attorneys by the Justice Department in 2006.

Goodling denied feeling that Gonzales was trying to influence her future testimony but said she thought the conversation might not have been appropriate. A Gonzales spokesman said the attorney general simply was trying to comfort Goodling at a hard time when she was searching for another job.

At a press conference in which Senate Democrats announced they would pursue a no-confidence vote against Gonzales after the Memorial Day recess, Whitehouse said Goodling’s description of the conversation raised eyebrows.

“I don’t know enough about what actually took place,” Whitehouse stated. But he added, “It is surprising how often a whiff of obstruction of justice has reared its head in the course of this investigation.”

Yet despite the huge political furor over the scandal resulting from the prosecutor purge, attorneys and lawmakers said, at least for now, there may be no more than a whiff of illegal behavior in the scandal as a whole.

President Bush last week said the probe was being “drug out” for political reasons but that any proven wrongdoing would be appropriately punished. “If there’s wrongdoing, it will be taken care of,” the president said.

If alleged crimes seem to have been committed, attorneys said, the most likely avenues of prosecution include obstruction of a Congressional investigation, or perjury and making false statements to Congress.

“Obstruction, perjury, false statements —that’s always how these things get started,” said ethics attorney and former House counsel Stan Brand.

Brand pointed to the Watergate defendants, many of whom were charged with similar crimes.

“There were not many substantial offenses charged in most cases. That was a cover-up,” he said.

Brand represented J. Steven Griles, the former Interior Department deputy secretary, who pleaded guilty to lying to Congress at the end of March after misrepresenting his relationship with disgraced lobbyist Jack Abramoff to the Senate Indian Affairs Committee in 2005.

But the question of whether the Justice Department actually could bring criminal charges, if it came to that, against its own employees, or former employees, is a tricky one. That has led some attorneys, such as Brand, to argue that the appointment of a special prosecutor in the investigation is inevitable.

Congressional Democrats, many of whom are not fans of special prosecutors, have chosen not to call for an independent counsel for now. Instead they prefer to keep the politically embarrassing scandal in their own hands as they dig for further nuggets.

Before charging anyone with a crime, investigators would first have to determine who allegedly made false statements to Congress.

Several witnesses have contradicted each other in Congressional testimony, most notably outgoing Deputy Attorney General Paul McNulty and Goodling, the former White House liaison and Gonzales counsel who quit shortly after the scandal broke.

Goodling told the House Judiciary Committee last week that McNulty’s allegations that she did not adequately prepare him for his Hill testimony were “false.” She said McNulty was not “fully candid” in both public and private accounts of his knowledge of the extent of White House involvement in the firings of the federal prosecutors.

But McNulty lashed back, releasing a statement stating categorically that he “testified truthfully” and that Goodling’s description of his testimony was “wrong.”

Goodling herself cannot be charged with a crime for any testimony she gave last week. The House Judiciary Committee granted her immunity from criminal prosecution after she invoked her Fifth Amendment right against self-incrimination.

But she could face other penalties related to her statements that she used inappropriate political criteria when evaluating potential Justice employees.

Goodling is the subject of an internal Justice Department investigation into her hiring practices but has not been charged with any violation — civil or criminal.

But the most explosive potential legal charges were leveled at Gonzales by Goodling. Gonzales has not been charged with any violation.

Whitehouse pointed to that conversation as potentially obstructing justice, as well as conversations that McNulty’s former chief of staff, Mike Elston, had with several ousted U.S. attorneys.

Several of those U.S. attorneys said Elston called them after the scandal broke to try to convince them to remain mum about their ouster in exchange for Gonzales keeping quiet about why they were forced out. Elston has denied their accounts.