April 16, 2007


Alberto Gonzales's long-awaited appearance before the Senate Judiciary Committee has been postponed until Thursday in light of the tragedy at Virginia Tech. Rather than trying to comment on that tragedy (I wouldn't even know what to say), I thought I'd take the opportunity presented by the delay in Gonzales' testimony to suggest a few lines of questioning that the Senators on the Judiciary Committee might wish to pursue.

With all due respect to those Senators, I haven't been terribly impressed by their cross-examination skills in past hearings. Good lines of questioning, particularly in the context of a Congressional hearing, are ones that are capable of boxing the witness into a corner and forcing him to make an important concession, no matter which way he chooses to answer the question. To do that, you have to anticipate the witness's possible answers and be prepared to proceed in different directions depending on how the witness responds. Too often Senators get flustered and lose their train of thought when the witness doesn't answer their initial, deeply penetrating question in quite the way they had expected, and they end up just moving on to the next question.

Senators also have a tendency to ask questions that are heavy on spin and contain many layers of embedded assumptions, the idea being to trick the witness into accepting the Senator's preferred framing of the issue. This rarely works, though. Most of the time the witness is prepared for this tactic and spends the entire time deconstructing the questions instead of answering them. Asking these kind of loaded questions may produce a few good soundbites, but it rarely advances the ball in any significant way. It's far more productive to ask fair, pointed questions, questions the witness can't really object to. Better yet, use the witness's own testimony or prior statements as the basis for your questions (it's much harder to object to your own words).

And finally, though this runs against every instinct Senators have, it's best to avoid all the introductory grandstanding. The most effective time to insert a pointed editorial comment is immediately after the witness has made a damaging admission, not before you've even asked a question. The latter, if done right, comes across as natural and warranted by the facts, while the former invariably comes across as scripted and obnoxious (and, again, it invites the witness to spend the entire time rebutting your opening remarks instead of answering your questions).

With the preceding in mind, here are the five lines of questioning that, in my humble opinion, would be the most fruitful to pursue during Gonzales's hearing. If any staffers for Senators on the Judiciary Committee happen to be reading this, please feel free to borrow these wholesale.

First Line of Questioning: Authority Issues

Mr. Gonzales, in your prepared testimony you said that you delegated the task of selecting which U.S. Attorneys to remove to your chief of staff, Kyle Sampson. You said that Mr. Sampson came up with a list of prosecutors who would be asked to leave, and that you eventually signed off on that list. You also testified, and I quote, "Mr. Sampson explained to me the plan to inform the U.S. Attorneys of my decision." Is it your testimony, sir, that the President was not involved in this process, that you made the final call?

If no: Please explain the extent of the President's involvement. Did he sign off on the final list? Was he given prior notification that these eight U.S. Attorneys would be asked to resign?

If yes: You are aware, sir, are you not, that by statute, the power to remove U.S. Attorneys belongs to the President, not the Attorney General? (28 U.S.C. 541(c): "Each United States attorney is subject to removal by the President.") As you pointed out in your testimony today, U.S. Attorneys serve at the pleasure of the president; not at the pleasure of the attorney general--and certainly not at the pleasure of Kyle Sampson. By what authority did you feel empowered to make these kind of personnel decisions? To replace presidential appointees? Is it your practice to exercise exclusively presidential powers without getting the president's sign off?

Follow up: The Albuquerque Journal recently reported that Senator Pete Domenici called you in the Spring of 2006 and told you that he wanted David Iglesias removed from his position as U.S. Attorney for New Mexico. According to the Journal, you refused and told Domenici that you would only do so on orders from the President. Is that account accurate?

If yes: Why did you require a Presidential order then, but not later? Iglesias was obviously added to the list at some point. What changed? Did the president ever indicate to you or anyone on your staff that he wanted Iglesias removed? Did he give a reason?

If no: What about that account is inaccurate? Did you speak with Sen. Domenici? Please describe that conversation. What was the substance of Domenici's complaint about Iglesias? How did Iglesias' name come to be on the removal list?

Second Line of Questioning: Knowledge of Substantive Basis for Dismissals

Sir, you've testified that you delegated the task of determining which U.S. Attorneys to remove to your former chief of staff, Kyle Sampson, and that you merely signed off on the recommendations he brought to you. When this controversy first erupted, however, the man you delegated this important task to resigned over his handling of this issue. That was over a month ago. Have you personally made any effort to go back and examine the process and reasoning Mr. Sampson used to come up with the final list of eight U.S. Attorneys? Or to put it another way, sir, do you know, as you sit here today, why each of the eight U.S. Attorneys were put on that list?

If yes: Can you please walk us through the substantive case for dismissing each of these attorneys? Let's start with David Iglesias . . .

If no: Do you mean to tell me, sir, that you spent weeks preparing for this testimony, but you have no answer to THE most fundamental question on everyone's mind: why were these attorneys removed? How can you sit here and testify that you "firmly believe that these dismissals were appropriate" when you're not even sure how and why the names of these eight prosecutors made it onto your chief of staff's list?

I understand that you claim to have delegated this task, but didn't you at least have an obligation to educate yourself on the substance of these decisions after the fact, particularly after this erupted into a major controversy? What did you do to satisfy yourself that Kyle Sampson had made the right calls? Are you simply taking on faith the word of a man who was forced to resign over his handling of this matter?

Follow up:

In an op-ed in the USA Today last week, you wrote that these prosecutors "simply lost my confidence." Doesn't that statement imply that you were in on the evaluation and decision-making process? What specifically did each of these eight prosecutors do to lose your confidence? Don't you owe them some sort of explanation, particularly in light of the fact that you and your deputies have publicly stated that they were let go for "performance-related" reasons, thereby damaging their professional reputations?

Third Line of Questioning: Monica Goodling

One of your senior aides, Monica Goodling, has refused to testify before this committee and has invoked her Fifth Amendment privilege against self-incrimination. Last week, she, like your chief of staff before her, resigned abruptly. How do you reconcile Ms. Goodling's behavior with your claim that nothing inappropriate happened here? Do you have any idea why your senior aide believes her truthful testimony would incriminate her?

Mr. Gonzales, you are the nation's chief law enforcement officer. Putting that hat on for a moment, imagine you were overseeing an investigation into a large company, and one of its senior officers refused to speak with you, choosing instead to invoke the Fifth Amendment. Under those circumstances, would you simply accept the CEO's assurance that "nothing inappropriate" had happened? Really?

And wouldn't the DOJ, as a matter of policy, insist that the company fire the uncooperative employee? Why was Monica Goodling allowed to remain on the Justice Department payroll after invoking the Fifth Amendment? Why was she not fired?

Fourth Line of Questioning: What About the Eighth U.S. Attorney?

You wrote in your recent op-ed in the USA Today that "it was for reasons related to policy, priorities and management — what have been referred to broadly as 'performance-related' reasons — that seven U.S. attorneys were asked to resign last December."

Yet as you stated in your testimony today, eight U.S. Attorneys were asked to resign. You even listed them by name. By implication, aren't you conceding here that one U.S. Attorney—who I assume is Bud Cummins of Arkansas—was let go for reasons unrelated to "policy, priorities, and management"?

If yes: If not for "reasons related to policies, priorities, and management," why exactly was Bud Cummins asked to resign? Who made that decision? Did you sign off on it? Did the President? What was your understanding at the time as to why this decision was made? What is your understanding as you sit here today?

If no: So Bud Cummins was let go for "performance-related" reasons? What were the reasons? Why did you mention only seven U.S. Attorneys in your op-ed? Why did your Deputy, Paul McNulty, testify that Cummins' dismissal was not for performance-related reasons but rather to make way for Tim Griffin, an associate of Karl Rove?

Fifth Line of Questioning: Carol Lam and the Appearance of Impropriety

When Kyle Sampson brought you the list of prosecutors whom he recommended removing, did any of the names stand out at you? You were aware, were you not, that Carol Lam of San Diego was responsible for a number of high-profile public corruption prosecutions involving high-ranking Republican officials such as Congressman Duke Cunningham and the number-three man at the CIA, Dusty Foggo? Were you at all concerned that Lam's name may have been added to this list in order to influence these prosecutions or as some sort of retribution for pursuing them?

If yes: What did you do to dispell those concerns? What were the actual reasons for Lam's dismissal?

If no: Didn't it at least occur to you that others--who were not privy to your private deliberations--might suspect that Lam was targeted for dismissal because of her prosecution of Republican politicians? It's not like U.S. Attorneys are routinely replaced in the middle of an administration. And except for perhaps Patrick Fitzgerald, Lam was the most well-known U.S. Attorney in the country. Weren't you at all concerned that removing Lam might reflect poorly on the department? That it would cause reasonable people to suspect that partisan politics was behind her dismissal?

Shortly after Carol Lam announced her resignation, the chief of the San Diego FBI office, Dan Dzwilewski, was quoted as saying "I guarantee politics is involved.” Is it really your testimony, sir, that it never occurred to you or your staff that asking Lam to leave would create at least the appearance of impropriety? If a high-ranking official in the Justice Department like Dan Dzwilewski was positive that politics led to Lam's removal, can you blame the rest of us for making the same inference?

(original post here)

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