Alberto Gonzales' legal troubles may just be beginning.

The law, lawyers, and the court.
Oct. 25 2007 8:11 PM

What Lies Beneath

Alberto Gonzales' legal troubles may just be beginning.

Former Attorney General Alberto Gonzales 
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Former Attorney General Alberto Gonzales

As our collective interest has shifted from the incompetence of the former attorney general to the independence of the next one, it's easy to forget that Alberto Gonzales may be in heaps of legal trouble. Virtually every public explanation of his surprising and abrupt resignation this summer was a benign one. Everyone (including we at Slate) was focused on the political justifications for Gonzales' resignation, rather than the legal ones. We speculated that Josh Bolten forced Gonzales out, that he finally wearied of being the nation's scratching post, that he had to leave when Karl Rove did. None of those explanations really made sufficient sense—especially for a man who had just vowed to stay on to the end, and recently finalized his fall schedule. There was no reason for Gonzales to leave when he did—he'd likely gotten away with turning the whole Justice Department into the president's personal playground, then covering it all up with half-truths. But maybe he didn't get away with it after all, and that's the real explanation for his departure.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

John McKay, one of the U.S. attorneys allegedly fired for improper political reasons, suggested just this in a speech last week before the Federal Bar Association. McKay claimed that Gonzales may be facing criminal prosecution, and soon. Describing an eight-hour meeting he had last June with investigators from the DoJ's Office of the Inspector General, which may file its report to Congress before Thanksgiving, McKay predicted that the investigators will recommend criminal prosecution of Gonzales for lying under oath.

Certainly, this might represent wishful thinking on the part of a former, shunted-aside Washington prosecutor. But more likely, McKay has connected the dots between Gonzales' hasty departure, his recent decision to retain a high-powered criminal-defense attorney, reports that Gonzales is apparently now refusing to answer questions from the IG, Glenn Fine, as well as the imminence of the IG report. "When it lands," said McKay, "it is going to be an extremely negative report on President Bush's Justice Department." John McKay has no reason to make recklessly inaccurate predictions. Glenn Fine is well-known as nonpartisan and diligent. Maybe he's about to put into words what everybody already knows.

What would Gonzales be on the hook for? The scope of his legal troubles has expanded with the scope of the IG's probe. When Fine began his internal investigation, he was just looking at the propriety of the mass dismissals of nine U.S. attorneys last winter. The office is now investigating charges ranging from improper hiring practices at Justice to the NSA's warrantless surveillance program, the rampant abuse of national security letters, and Gonzales' alleged efforts to influence Monica Goodling's Senate testimony. Fine's office does not have the authority to bring criminal charges. He can only refer his findings to criminal prosecutors or recommend the appointment of a special prosecutor to follow up.

There are, for starters, numerous instances of what looks to be false congressional testimony by Gonzales—itself a crime—most notably his claim that there was no serious disagreement inside the administration about the Terrorist Surveillance Program. This has now been broadly refuted by Robert Mueller, Jack Goldsmith, and James Comey. Gonzales testified in 2005 that "[t]here has not been one verified case of civil liberties abuse" under the Patriot Act. Documents indicate he'd received multiple reports in 2005 and 2006 of violations in connection with national security letters. He testified in April 2007, that, in the matter of the U.S. attorney firings, "I haven't talked to witnesses because of the fact that I haven't wanted to interfere with this investigation." Former White House liaison Monica Goodling later testified she had an "uncomfortable" discussion with him in which Gonzales set out his version of events regarding the process of firing U.S. attorneys. Gonzales has come back with a slickly parsed explanation for how these false statements were all, in fact, true. But Fine nevertheless told the Senate judiciary committee in September that his office "has ongoing investigations that relate to most of" these subjects.

According to a recent article in Newsweek, the former AG finally lawyered up because, according to three legal insiders, "Gonzales's team … 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." And the oft-somnolent House judiciary committee heard yet more devastating testimony this week about the depth and breadth of the politicization at DoJ—including claims by Richard L. Thornburgh, attorney general in the Reagan and first Bush administrations, that the best way for an ambitious U.S. attorney to advance in the Gonzales Justice Department was to go after high-profile Democrats during election season for the most trivial of infractions. Murray Waas also suggested last week that Gonzales' conflict of interest in overseeing the investigations of subordinates who were likely to testify against him in regard to a leak case was so egregious that a special prosecutor may be the only way out.

In short, with all these tentacles of misdeeds waving around, the IG's report may finally package it all up in a systemic way that Congress has failed to do. At which point, the only question will become whether the Justice Department will refer this case for prosecution. Another of the dismissed U.S. attorneys, David Iglesias, said in a telephone interview that he'd be "stupified" if that happened. But whether or not it does, the seriousness of the threat could still explain why Gonzales is out of a job. 

Had he stayed on at DOJ, Gonzales would have been expected to testify again this fall before the Senate judiciary committee on the FISA legislation, and that questioning likely would have picked at the loose threads of all his prior testimony, opening up yet more possibilities for more perjury. No defense attorney would have permitted this to happen. Emptywheel agrees that this is the likeliest scenario. Gonzales lawyered up when the IG started to investigate him, and his lawyer finally told him what a child could have known nine months ago: Shut up and avoid the parsing, mincing, and lying. This president isn't worth going to jail for.