In one instance, an attorney for former Bush White House chief political strategist Karl Rove recently told TPMmuckraker that even though Rove had refused to cooperate with an earlier Justice Department inquiry into the firings by the Bush administration of nine U.S. attorneys, he would now fully cooperate with a federal grand jury that has been empanelled to hear evidence in the case. But most of the other former senior White House officials, as well as members of Congress and their staffs, declined to say for this article whether they have or will cooperate with the various federal criminal investigations.
Previously, two Justice Department watchdog offices, the Inspector General and Office of Professional Responsibility conducted investigations of the firings of the U.S. attorneys and the politicization by the Bush administration of the Justice Department's Civil Rights Division. But those two offices do not have the power to compel the testimony of witnesses outside the department itself or to initiate criminal prosecutions. The Inspector General and OPR successfully sought the naming of a criminal prosecutor to take over their probes.
In a report that the Inspector General and OPR made public last September detailing the findings of their investigation of the prosecutor firings, they asserted that their investigation was severely "hampered... because key witnesses declined to cooperate with our investigation."
In regard to the investigation of the politicization of the Civil Rights Division, investigators sought a criminal investigation in part because four Bush administration appointees refused to cooperate with their initial probe. Two other investigations by the Inspector General and OPR of the Bush administration's warrantless eavesdropping program are also currently underway. It is unclear in those instances whether a criminal prosecutor might eventually take over those investigations as well.
In the case of the firings of the U.S. attorneys, Nora Dannehy, the acting U.S. Attorney for Connecticut, who took over the investigation from the Inspector General and OPR, recently empanelled a federal grand jury in Washington to hear evidence in the matter.
As TPMmuckraker recently disclosed, the federal grand jury probing the firings of nine U.S. attorneys is currently zeroing in on the role played by recently retired Sen. Pete Domenici (R-NM) and former senior Bush White House officials in the firing of David Iglesias, a former U.S. attorney from New Mexico, according to legal sources familiar with the inquiry.
Last week, the Associated Press confirmed that story, reporting that the federal grand jury had subpoenaed records from Domenici and that Dannehy is also about to interview former Rove aide Scott Jennings, whose lawyer said he is cooperating to the "best of his ability." Domenici's attorney, K. Lee Blalock, after originally refusing to comment, and then suggesting to the New Mexico media that the TPMmuckraker report was incorrect, confirmed that the records of his client had in fact been subpoenaed. He also told the Santa Fe New Mexican earlier this month: "The investigation exists, but it is not focused on Senator Domenici to the exclusion of all others."
But despite the fact that Domenici has already been severely criticized by two internal Justice Department watchdog agencies for refusing to answer questions from the Inspector General and OPR, Blalack is refusing to say whether he will cooperate with prosecutors conducting the current federal grand jury probe. The subpoena of Domenici's records suggests that Domenici may not have voluntarily wanted to turn them over to authorities. Blalack declined to comment regarding this.
While anyone under criminal investigation has the constitutional right to refuse to testify, elected officials ordinarily do not invoke that right because of the stigma and political damage to their careers if they do so. Often, an elected official will only defy a federal grand jury if his or his attorney believes it can place their client at greater legal risk, or if they are believed to be a subject or target of investigators.
Domenici has not been named as either a subject or target of Dannehy's grand jury probe. But in seeking the appointment of a criminal prosecutor to take over their investigation in the first place, the Inspector General and OPR cited Domenici's conduct and his refusal to cooperate with them as a major reason they wanted a criminal prosecutor with subpoena and prosecutorial powers to investigate. Domenici retired in January after 36 years in the Senate in early January. In that he no longer has to run for office, there is less pressure on him to now testify.
But some believe that public officials who refuse to cooperate with federal investigations should be condemned.
Melanie Sloan, the executive director of the progressive Washington D.C.-based advocacy group, Citizens for Responsibility and Ethics, said in an interview of the prospect that Domenici might not cooperate with the criminal investigation: "Pleading the 5th Amendment to a federal investigation marks an ignominious end to Mr. Domenici's Senate career. It suggests the Senator knowingly violated the laws he swore to uphold when he contacted the New Mexico U.S. Attorney about a pending criminal matter."
Solomon L. Wisenberg, a former federal prosecutor and a deputy independent counsel in the Whitewater and Clinton-Lewinsky matters, noted that some Bush administration officials cited executive privilege while non-cooperating with the Inspector General and OPR probe of the firings of U.S. attorneys. That will be more difficult to do, he said, now that a criminal investigation is underway: "It is extremely difficult to claim executive privilege when there is a federal criminal investigation going on," he said, "As a practical matter; a grand jury investigation trumps executive privilege. It has long been decided through the case law from Watergate and Whitewater that executive privilege is always weakest in the context of a federal grand jury investigation."
People not wanting to cooperate with criminal investigators or not wanting to testify to a federal grand jury still have the right not to, Wisenberg pointed out, but they won't be able to cite executive privilege any longer. "If I was representing some of these people," says Wisenberg, now a criminal defense attorney, "I might advise them not to cooperate without a grant of immunity. Depending on whether they had exposure, I might counsel them to take the Fifth Amendment."
In a report made public about the U.S. firings last Sept. about the firings, the Inspector General and OPR said that Domenici's then chief of staff, Steve Bell, also played a crucial role in having Iglesias fired. The report said that the investigation was severely "hindered" not only because Domenici refused to cooperate with investigators, but also because Bell declined to do so as well.
Michael Madigan, an attorney representing Domenici's former chief of staff, Steve Bell, did not respond to several telephone and email requests for a comment as to whether Bell will now cooperate with the recently empanelled federal grand jury.
Former Rep. Heather Wilson (R-N.M.), was also questioned by the Inspector General and OPR about her efforts to have Iglesias fired as U.S. attorney. Unlike Domenici and Bell, Wilson for the most part cooperated with their effort. But there were some questions that she refused to answer from the investigators, drawing criticism from them in their final report.
Contacted at her home in New Mexico, Wilson told me she did not want to comment about whether she would now answer all questions posed to her by Dannehy or a federal grand jury because the grand jury was in an active stage.
Justice Department investigators also concluded that another U.S. Attorney, Todd Graves, of Kansas City, Missouri, was fired because of complaints made about Graves to the White House and Justice Department by a senior aide to Senator Kit Bond (R-MO)
Like Domenici, Bond refused to be interviewed by investigators. The Inspector General and OPR wrote in their report about the U.S. attorney firings: "We asked Senator Bond for an interview regarding the circumstances surrounding Graves's removal.... In a letter responding to our request, Senator Bond declined to be interviewed."
A spokesman for Bond, Charles Chamberlayne, declined to comment as to whether Bond would cooperate with the federal grand jury investigation of the firings.
Besides the members of Congress, Justice's Inspector General and OPR said that their investigation was severely hampered because of the refusal of numerous Bush White House officials involved in the firings to cooperate with their investigation.
Among those named in the report who refused to cooperate with investigators, the report said, were Former White House political adviser Karl Rove, former White House Counsel Harriet Miers, Deputy White House Counsel William Kelley, and Associate White House Counsel Richard D. Klingler.
So will the four former Bush White House officials now cooperate with Dannehy or testify before the federal grand jury if subpoenaed?
In the case of Rove, his attorney, Robert Luskin, recently told TPMmuckraker that his client will cooperate with the federal criminal investigation underway: "I can say that he would cooperate with the Dannehy investigation if asked," Luskin told me. Luskin said that Rove had not cooperated with the earlier probe by the Inspector General and OPR because he was instructed by the Bush White House counsel's office not to do so.
Former White House counsel Harriett Miers declined to comment for this article as to whether she would cooperate with the criminal inquiry into the firings of the U.S. attorneys.
In a brief telephone conversation, Klingler, now an attorney in private practice, also declined to say whether he will cooperate with the federal criminal inquiry: "It is not a productive use of your time or mine...," he said, before hanging up mid-sentence. Klingler was the Bush White House official most personally involved in Graves' firing, according to the Inspector General and OPR report on the firings. Because Sen. Bond and Klingler both declined to answer questions from investigators, they were unable to get to the bottom of why Graves was fired.
Kelley also declined to say whether or not he will cooperate with the federal grand jury into the prosecutor firings. Kelley's testimony is important to any investigation of the firings of the U.S. attorneys because of his role in the firing of Iglesias.
On the very day of Iglesias' firing, for example, Kelley emailed then-Attorney General Gonzales' chief of staff, Kyle Sampson, to report: "Domenici's COS [chief of staff] is happy as a clam."
Another investigation by the Justice Department's Inspector General has focused on misconduct by J. Robert Flores, the Bush administration's former administrator of the Justice Department's Office of Juvenile Justice and Delinquency Prevention (OJJDP). Although little known outside the Justice Department, the OJJDP doles out more than a quarter of a billion in federal grants each year to decrease the number of juveniles in dangerous facilities and to prevent juvenile delinquency. Flores came under investigation by the Inspector General for allegedly setting aside federal laws and government regulations to award federal grants to political allies of the Bush White House and for also allegedly using federal travel funds to play golf.
During that investigation, Flores' then-chief of staff, Michele DeKonty, took the Fifth Amendment rather than answer questions from Congress about the awarding of federal grants for political reasons, and similarly refused to be interviewed by the Justice Department's Inspector General -- leading to her immediate firing by then-Attorney General Michael Muksasey.
The Inspector General's probe has reportedly since transformed into a criminal investigation. DeKonty's attorney, David H. Laufman, declined to comment for this article as to whether his client has since cooperated with the criminal inquiry.
In another investigation in which Justice's Inspector General and OPR faced uncooperative witnesses -- regarding the Bush administration's politicization of the Justice Department's Civil Rights Division -- they also sought a criminal probe to compel testimony of officials and also to determine if there was any evidence of any crimes committed.
In August 2008, I wrote this story for the Huffington Post first disclosing that a federal grand jury had been empanelled to hear evidence in the matter because of the refusal of several officials to cooperate with the Inspector General and OPR:
A federal grand jury has subpoenaed several former senior Justice Department attorneys for an investigation into the politicization of the Department's own Civil Rights Division, according to sources close to the investigation.
The extraordinary step by the Justice Department of subpoenaing attorneys once from within its own ranks was taken because several of them refused to voluntarily give interviews to the Department Inspector General, which has been conducting its own probe of the politicization of the Civil Rights Division, the same sources said.
The grand jury has been investigating allegations that a former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman, gave false or misleading testimony on a variety of topics to the Senate Judiciary Committee.
Sources close to the investigation say that the grand jury is also more broadly examining whether Schlozman and other Department officials violated civil service laws by screening Civil Rights attorneys for political affiliation while hiring them.
That story named two former Bush administration appointees in the Civil Rights Division who refused to be interviewed by investigators: Hans Von Spakovsky and Jason Torchinsky.
When the Inspector General and OPR subsequently released their report on Schlozman, they not only confirmed that Von Spakovsky and Torchinsky indeed had declined to cooperate with them, but also said that Schlozman and a fourth senior Justice Department official, J. Michael Wiggins, had also declined to cooperate.
An attorney for Torchinsky told me in an interview that Torchinsky has subsequently "fully cooperated with the Department of Justice's criminal inquiry... and testified to the grand jury as a witness."
Wiggins had been both a Deputy Attorney General and Acting Assistant Attorney for Civil Rights during the Bush administration. Prior to the report by Justice's IG and OPR, Wiggins name had not surfaced in the various Justice Department politicization scandals, and it is unclear why he refused to cooperate with investigators. He declined to comment for this story.
Wiggins was a Bush administration point man for indefinitely incarcerating enemy combatants without trial. At one point, he testified before the Senate Judiciary Committee regarding the detainees:" It's our position that, legally, they can be held in perpetuity," Among President Obama's first acts in office were signing an executive order closing down Guantanamo and saying the U.S. government would no longer indefinitely hold detainees.
As for Schlozman, the Inspector General and OPR concluded in their report that he "violated federal law"--in particular "the Civil Service Reform Act"-- by making hiring decisions for career Justice Department slots based on political ideology. The IG and OPR also concluded that "Schlozman made false statements about whether he considered political and ideological affiliations when he gave sworn testimony to the Senate Judiciary Committee."
The U.S. Attorney for the District of Columbia subsequently declined criminal prosecution.
(ed. note: Murray Waas is a investigative reporter based in Washington D.C. Among his most recent stories have been accounts of what former Vice President Cheney told investigators during the CIA leak probe and the Justice Department's investigation of its own former Attorney General, Alberto Gonzales.)