ParfumGigi@aol.com

Jason McLure
Legal Times
04-30-2007

For a moment, it looked like Attorney General Alberto Gonzales might be able to put the U.S. Attorney scandal behind him.

Though his testimony before the Senate Judiciary Committee on April 19 received universally poor reviews from members of Congress, the hearing was largely eclipsed by the mass murder at Virginia Tech. And while they have remained critical, key Republican senators stopped short of calling for his resignation. Within days, President George W. Bush said Gonzales' testimony had "increased my confidence," and the attorney general said he had no plans to leave.

But it's now clear Gonzales has many more tough weeks ahead. The number of probes into the firings has increased: Now there are three congressional committees, a joint investigation by two Justice Department offices, and an investigation by the Office of Special Counsel. Meanwhile, much of the leadership of the department has been besieged by requests for information by various investigators and the media.

At a hearing last week, House Judiciary Committee Chairman John Conyers Jr., D-Mich., made clear the matter was not going away. "This goes to the heart of the public's ability to rely on the integrity of our legal system," Conyers said.

For now, the investigatory spotlight has shifted from the Senate Judiciary Committee to Conyers' panel, where Gonzales will have to testify under oath about the firings on May 10. That committee is likely to hear testimony from former Deputy Attorney General James Comey on May 3, and it may soon hear from former Gonzales aide Monica Goodling, who was granted limited immunity from prosecution in return for her testimony.

Conyers has said he'll seek the public testimony of other Justice Department leaders, including current Deputy Attorney General Paul McNulty and McNulty's top aide, William Moschella. Both were queried extensively behind closed doors by committee staffers last week. In addition, the committee is seeking to broaden the inquiry by requesting interviews with eight additional Justice officials, including four sitting U.S. Attorneys.

But while Conyers' committee keeps the focus on Justice, a second House panel, the Committee on Oversight and Government Reform chaired by Rep. Henry Waxman, D-Calif., is pursuing a different vein of inquiry. Last week, Waxman issued subpoenas to the Republican National Committee seeking documents and testimony related to missing e-mails from White House officials involved in the firings.

Meanwhile, the Senate Judiciary Committee voted to authorize a subpoena for Sara Taylor, a top deputy to White House political director Karl Rove, and moved forward with plans to interview the Justice Department's top career official, David Margolis, about his role in the firings. In addition, Sen. Charles Schumer, D-N.Y., one of the driving forces behind the Senate's investigation of the firings, floated the idea of a no-confidence vote in Gonzales.

But Gonzales' problems aren't limited to Capitol Hill. In a nondescript office building less than a mile north of the White House, the Office of Special Counsel, a little-known agency tasked with protecting federal whistleblowers, announced last week that it was looking into whether the firing of New Mexico U.S. Attorney David Iglesias was improper.

Michael Barrett Jr., a former Capitol Hill lawyer who worked on the Watergate investigation, says that having so many probes at once is unusual. "There's going to have to be a lot more explanations that have to be forthcoming before [they're] going to go away," he says.

A fifth investigation into the firings could yet produce the most comprehensive account of the firings to date. But that probe, a joint effort by the Justice Department's Inspector General's Office and its Office of Professional Responsibility, has been the subject of concern among Democrats in the Senate, who have expressed fears that it will be insufficiently independent of the department leadership it's supposed to be investigating.

That's because the OPR, which primarily investigates legal misconduct by low-level Justice employees, almost never issues external reports of its investigations and rarely issues public documents of any kind (as of last week, the most recent annual report posted on its Web site was from 2004). The OPR also answers to Gonzales through the Office of the Deputy Attorney General, where its activities are directly overseen by Margolis, Justice's top career official, who himself was involved in the firing decisions now under review.

In contrast, the Inspector General's Office is widely viewed as the more independent of the two. It not only reports to Gonzales but also issues reports to Congress and the public. Last week, that office sought to alleviate concern that its cooperation with the OPR would result in a report that would be kept from public view. "We plan to have a public report," Paul Martin, the Justice Department's deputy inspector general, said in an interview with Legal Times, adding that if the investigation turned up evidence of criminal wrongdoing in the department's decision-making process over the firings or misleading statements issued to Congress, the office would refer the matter to a federal criminal prosecutor.

Exactly who that prosecutor would be remains an open question. Two local U.S. Attorneys would appear to be too conflicted to take any case. Jeffrey Taylor, the U.S. Attorney for the District of Columbia, was a counsel to Gonzales at a time when the firings were discussed. Charles Rosenberg, the U.S. Attorney for the Eastern District of Virginia, served as Gonzales' interim chief of staff for a month and a half this spring, while the attorney general sought to respond to the controversy.

And given how much of the department's leadership has been touched by the scandal, it's difficult to see how any case could be prosecuted through Justice's normal chain of command.

"I think that this is uncharted territory," says Michael Bromwich, a partner at Fried, Frank, Harris, Shriver & Jacobson who was Justice's inspector general from 1994 to 1999.

Any criminal wrongdoing, says Bromwich, would likely be referred to Solicitor General Paul Clement -- the highest-ranking Justice official untainted by the scandal. In such an eventuality, says Bromwich, Clement "would be well advised to bring in a special prosecutor."

Behind the scenes, Gonzales has been attempting to reach out to at least some members of Congress, according to one top Justice official. He's placed personal calls to each member of the Senate Judiciary Committee. He has also paid visits to two senators who have called for his resignation, Sens. Tom Coburn, R-Okla., and Mark Pryor, D-Ark., as well as Sen. Ken Salazar, D-Colo., a former ally of Gonzales whose support has waned.

The effort to stem the erosion of congressional support has met with limited success. After his April 25 meeting with the attorney general, Pryor reiterated his demand for Gonzales' resignation. The same day, Sen. John McCain, R-Ariz., a leading candidate for the Republican presidential nomination in 2008, became the latest GOP senator to call for Gonzales to resign. He did so during an appearance on CNN's "Larry King Live."

Amid it all, the attorney general has attempted to restore some semblance of normalcy -- with limited success. On April 23, he held a press conference with Federal Trade Commission Chairwoman Deborah Majoras to promote the president's identity-theft task force, but he was confronted with a barrage of questions about the scandal from reporters.

On April 26, he escaped to Rochester, N.Y., to announce a $2.5 million grant in support of that city's anti-gang initiative, though even there he was met by a handful of protesters who attracted local media attention by waving signs with messages like "Gonzales is short on truthfulness, integrity and memory." The following day, he was back in Washington for a photo-op with Mexico's visiting attorney general, though a Justice Department press release warned in advance that Gonzales would "not be issuing statements to the media."

For the moment, Gonzales' days will be spent in much the same way they have been for most of the spring: preparing to defend himself before Congress. With the May 10 hearing before Conyers' committee fast approaching, the attorney general is certain to face new questions from members of Congress armed with information gleaned from testimony by McNulty, Moschella, Comey and possibly Goodling. As if that wasn't enough, Gonzales must also prepare for a May 9 Senate Appropriations Committee hearing, in which he'll be asked detailed questions about his management of the rest of the 110,000-person department.

In the current environment, getting through a run-of-the-mill appropriations hearing will be no simple task.