Gonzales evades criminal prosecution for misleading Congress on NSA spying

The Justice Department has concluded that there is insufficient evidence to bring criminal charges against former Attorney General Alberto Gonzales for allegedly misleading Congress about the Bush administration’s warrantless eavesdropping program.

The decision was first disclosed yesterday by reporter Murray Waas in a little-noticed posting on the blog of New York Magazine. The magazine cited public court records and federal law enforcement officials as its sources.

Although Gonzales remains under investigation by the Justice Department for two other matters, it had been allegations that he gave false or purposely misleading testimony to the Senate Judiciary Committee about the warrantless eavesdropping program that placed him by far in the greatest legal jeopardy.

In not bringing criminal charges, however, investigators for the Department’s Inspector General, which conducted the investigation, hardly let Gonzales off the hook completely. They concluded that Gonzales testimony before Congress about the eavesdropping program was “confusing,” “incomplete’ and had the “effect of misleading” both Congress and the public.

A major reason that Gonzales escaped criminal charges, according to people close to the investigation, was that he was willing to do something that he had steadfastly refused to even contemplate before: admit that many of his most controversial decisions, first as White House counsel, and later, as Attorney General, in authorizing, overseeing, and concealing the eavesdropping program were done at the specific directive of former President Bush.

In other instances, Gonzales and his attorneys argued to the Justice Department that Gonzales’ actions were done in furtherance of Bush administration’s policies, and thus he did not act with personal intent to do wrong.

“He was willing to be lightning rod in the past for the President,” one legal source close to the investigation told reporter Waas for his  New York magazine post, “He has done that during the entire course of his career. But it was pressed upon him that that was not going to work in this instance—and he did what he had to do.”

As Waas explained in the article:

Ironically, in finally talking to investigators about the president, Gonzales might actually have been protecting his old boss, as well as himself. A senior Bush-administration official familiar with the matter told me that Fred Fielding, the White House counsel in the closing days of the Bush presidency, feared that the Justice Department’s probe of Gonzales’s misleading testimony might morph into a special prosecutor’s investigation not only of Gonzales, but also of the conduct of others in the Bush White House — including perhaps Bush himself. (The Justice Department can refer an investigation to the attorney general for a criminal or special prosecutor to take over.)

Fielding quietly counseled Gonzales’s cooperation, and Gonzales’s legal team, headed by George J. Terwilliger III, a deputy attorney general during the presidency of the first President Bush, made an early decision to fully cooperate with the inspector general.

If during the course of an investigation, however, the Inspector General can seek to have a criminal prosecutor or even a special prosecutor take over its investigation to determine if criminal charges are warranted-- as was the case in regards to an Inspector General's investigation of the firings by the Bush administration of  some  nine U.S. Attorneys.   A federal criminal prosecutor is currently examining the role of former White House aide Karl Rove and various other Bush administration officials in regards to the firings.

In the instance of Gonzales' testimony regarding the eavesdropping program, however, that was not the case.

And in the meantime,  Gonzales continues to be under investigation by a second Justice Department oversight agency, the Office of Professional Responsibility, for his role in authorizing,   as White House counsel,  and then overseeing, as Attorney General,  Bush's warantless surveillance program.  Both Bush and Gon zales took heat for attempting to shut down the investigation by refusing to provide security clearances for investigators-- even though they had come to know that the probe would scrutinize their own  conduct.   Gonzales  later said that Bush himself made the decision not to grant the clearances.  When it was learned that Bush himself was responsible,  congressional pressure led to the investigators being allowed to obtain the clearances and conduct their investigation.  There is no word as to when that probe might be over.

And, meanwhile, an investigation of Rove's role by the Justice Department's Office of Professional Responsibility  in the Dan Siegelman prosecution is continuing.  Rove's attorney has claimed that Rove has been cooperating with that investigation.  The results of that investigation will not be known for at least several more months.  Prosecutors have not indicated when that investigation might be completed.