Muddy Waters Still Run Deep For Gonzales

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

The screaming headlines in the nation's leading newspapers this past week about the scandal over last year's dismissal of eight U.S. attorneys — headlines based upon newly-disclosed contradictions from the mouths and computers of Justice Department officials — easily explain why the attorney general would want to try to squeak out his own counter-message a full 48 hours before he enters the lion's den on Capitol Hill.

"Attorneys assessed long before firings," the Los Angeles Times offered Saturday. "Bush officials looked at insiders to take the prosecutor jobs, new documents show."

The Boston Globe offered this: "Testimony of ex-aide to Gonzales questioned; e-mails show list of replacements for prosecutors."

The Washington Post's coverage was extensive, and on Friday, The New York Times ran a story about an under-experienced federal lawyer entitled: "Political resume, not court, stood out for a contender."

And the most telling story of all, from USA Today, reported on a newly-discovered internal Justice Department memo from a spokeswoman there who declared it the purpose and strategy of her office to "muddy the coverage" of the scandal.

The strategic and tactical "muddying" this weekend didn't begin or end with the pre-release of the attorney general's canned message to Congress. Gonzales summarized his official position and his upcoming remarks in an op-ed piece in Sunday's Washington Post. In both instances, his message classically proves precisely the points about his tenure as attorney general that Gonzales is hoping to undercut before the professional crisis of his life gets any worse. Parsed to the point of meaninglessness, his speech and his column both read more like losing legal briefs than compelling political statements.

Even though mistakes were made in the process of firing those federal prosecutors, Gonzales now writes: "I know that I did not — and would not — ask for the resignation of any U.S. attorney for an improper reason. Furthermore, I have no basis to believe that anyone involved in this process sought the removal of a U.S. attorney for an improper reason."

This clearly is the last line of his defense and of the defense of the executive branch. Even though the U.S. attorney mess was handled terribly, in the end nothing wrong of substance was done to the prosecutors or anyone else.

Focusing only upon the above Gonzales quotes, and forgetting the other mush-mouthed statements contained in the weekend "muddying" efforts, there are two fundamental flaws in his position. First, he narrowly defines "improper reason" in his speech as "the replacement of one or more U.S. attorneys in order to impede or speed along particular criminal investigations for illegitimate reasons." In doing so, he is able to declare, in the sort of legalese that ought to raise red flags, that he "has no basis to believe" that any of the eight U.S. attorneys were fired for an "improper reason."

It's an easy straw man to build up and then tear down, and it makes Gonzales appear as if he, indeed, has "nothing to hide." But there are other "improper reasons" for firing a U.S. attorney, if not in law then in fact. And even if you agree with Gonzales' cramped reading of that phrase, he clearly is signaling by his "no basis to believe" talk that he's not interested in facing a perjury rap on behalf of one of his many misguided Justice Department underlings, one of whom, Kyle Sampson, is now in more hot water than ever for his now-discredited comments made a few weeks ago before the Judiciary Committee.

It would seem improper, for example, to fire a seasoned and successful federal prosecutor for not being "a loyal Bushie," even though the U.S. attorney at the time is zealously advocating the civilian use of a fantastic new information-sharing law enforcement system.

Yet that is precisely what Gonzales did. And it would seem improper, too, to replace experienced and respected U.S. attorneys with political cronies of high-ranking White House officials, or graduates of less-than-mediocre law schools, or attorneys who have never tried a case in court. But that is precisely what Gonzales did as well.

There are other oddities in the factual and legal position Gonzales has taken in the days before his latest last stand. For example, the attorney general still maintains that, "to his knowledge," he did not make decisions about which federal prosecutors were to be replaced, a curious notion for the head of the Justice Department to take and one that is becoming less and less supportable given the amount of conflicting evidence that keeps emerging from the documents turned over by the executive branch to the legislative branch. Besides, even if true, it's not exactly confidence-inducing or respect-inspiring that the attorney general would keep himself out of the loop on such a vital matter.

Gonzales also writes that he "misspoke" during his hapless press conference of March 13 (the one during which he seemed to melt under the cameras' glare). He "never meant to mislead Congress," he writes, but sill won't be able to provide Congress "with all the facts" that it "desires" during Tuesday's hearings because he doesn't remember those "facts" and has not "reviewed any confidential transcripts of any interviews" other Justice Department officials gave to Congressional investigators.

These comments beg the question: What, then, has Gonzales been doing these past two weeks while holed up practicing his testimony with Republican officials? They also are not likely to make his visit Tuesday to the Judiciary Committee any less heated than it was already going to be. Political blood is in the air. And maybe some legal charges, too. That's as clear as mud.

By Andrew Cohen