It’s not paranoia if they ARE out to get you, No. 6

At No Comment, Scott Horton continues with his stellar reporting on the politicization of, and abuse of power in, the Department of Justice with this July 23, 2008 post of his Six Questions for Former U.S. Attorney David Iglesias, Author of In Justice. Mr. Iglesias. one of the United States Attorneys fired by DoJ on December 7 – Pearl Harbor Day – of 2007, explains, in a nutshell, what happened:

One cannot fully comprehend the recent Justice Department meltdown without understanding the belief in New Mexico, Missouri, and Washington State Republican circles, that the 2000 election and subsequent contests were rife with fraud. It set the stage for what followed during the scandal surrounding the forced resignations in 2006 of United States Attorneys John McKay of Seattle, Todd Graves of Kansas City, and me. We were all criticized by Republican operatives for not filing voter or election fraud cases in our respective districts. Each of us examined the evidence and did not find any provable cases, so no indictments were filed. I remember hearing Republican activists allege that the Democrats stole the election in New Mexico during the 2000 presidential election. I heard that illegal immigrants were voting in large numbers. If true this would be criminal, but prosecutors may not base their cases on rumor and innuendo but on admissible evidence they can prove beyond a reasonable doubt in a court of law. * * *

Voter fraud became the bogeyman of New Mexico politics. And what person was best equipped to prevent this alleged problem from happening again? The United States Attorney. Hence in the summer of 2002 the Executive Office of United States Attorney in Washington emailed all 93 U.S. Attorneys asking us to work with state and local election officials to prevent election fraud. * * * That changed dramatically in 2004, when the local media covered numerous instances of apparent voter fraud. * * *

In response, I set up one of only two election fraud task forces in the country. * * *

I also set up a hotline for citizens to call into the local FBI office. I believed that we would find provable cases of fraud that I could prosecute, and I was determined to find them. * * * After almost two years of investigation, we were unable to come up with a single prosecutable case. I conferred with main Justice and with the local FBI office. It was ultimately my call, and I followed the professional staff in finding that there wasn’t enough evidence to support a prosecution. Main Justice and the FBI did not disagree with my assessment.

But local Republican leaders disagreed. They could not believe that the investigation failed to produce a prosecution. During the 2004-06 time period, Rumaldo Armijo and I received numerous phone calls and emails from former state G.O.P. counsel Patrick Rogers. He exhorted us to file cases. We could only tell him what we would tell any member of the public–that we would file provable cases and even then, we would not file a case just before an election if we felt it could affect the outcome of the election. This was policy of the Justice Department, per career attorney Craig Donsanto, who wrote the election fraud manual that all U.S. attorneys used. Significantly, Rogers never told Armijo or me that he was also an official of a group called the American Center for Voting Rights—a G.O.P. organization alleged to be engaged in voter suppression efforts. I did not find this important fact until after I left the Justice Department. I knew Rogers to be involved in the litigation over the voter I.D. law and knew him to be a fiercely partisan Republican. In 2006, I heard from a friend of mine who was active in the state party that the party was upset with me. At one point he implored me, “can’t you file something?” So I heard the rumbling of the party in the 2005-06 timeframe.

I was aware of the simmering discontent of the local Republicans. Just before the 2006 midterm election that discontent boiled over when I received a highly improper phone call from Congresswoman Heather Wilson in mid-October and another call from Senator Pete Domenici in late October. * * * Both Wilson and Domenici were talking about the same investigation. Wilson had used her opponent’s weak record in pursuing corruption cases as part of her attack strategy. I knew that if I told them I was close to indicting the case that would be used by Wilson in connection with her election campaign. I also knew they had no legitimate need to know when I would be filing the indictments. I was put on the list to be fired on November 7, 2006—Election Day. The timeline alone is damning and it was clear to me that I was placed on the list because I would not rush an indictment of a high-profile Democrat in a way that would benefit Wilson in her campaign. * * *

As Mr. Horton notes in his introduction,

His meteoric career is not simply the stuff of movies–after all, some of David Iglesias’s experiences as a Navy JAG at Guantánamo Bay furnished the material for Aaron Sorkin’s play “A Few Good Men,” later converted into a Hollywood blockbuster. (Italics in original.)

Even a stellar career in the Navy that is ‘the stuff of movies’ followed by six (6) years of public service as a United States Attorney was not sufficient to insulate Mr. Iglesias from the Bush administration. And throughout this whole sordid affair, Mr. Iglesias has maintained his professionalism, demonstrated his strength of character and, as a result, provides a model of conduct to which all attorneys should strive to emulate.

Read the rest of the interview here .

Buy David Iglesias’ book In Justice: Inside the Scandal That Rocked the Bush Administration.

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Alberto Gonzales: Not just unethical, but criminal?

As reported by Jason Leopold at the Online Journal on February 29, 2008, (h/t nonnie9999), Alberto Gonzales not only engaged in unethical conduct, but likely also engaged in conduct that was criminal:

John McKay, the former US attorney for the Western District of Washington who was also fired in late 2006 for reasons that appear to have been motivated by partisan politics, wrote in a lengthy article in the January edition of the Seattle University Law Review [incorrect link in original document] that Iglesias’s firing stands out among the other eight federal prosecutors because it demonstrates “the very real prospect of improper interference with an ongoing criminal investigation involving public corruption and the seeking of political advantage.”

“Violations of the obstruction of justice statute may have occurred and should be investigated,” McKay wrote. “Even as the role of the White House remains shrouded in its claims of executive privilege, 23 certain White House employees appear to have been heavily involved in the dismissal of U.S. Attorney Iglesias. In several e-mails it appears that these officials were reacting directly to the complaints of Senator Pete Domenici (R-NM) and the ongoing investigation into public corruption in New Mexico. For example, Deputy White House Counsel Bill Kelley smugly e-mailed Gonzales’ Chief of Staff Kyle Sampson to report that Domenici’s office was ‘happy as a clam’ on learning of Iglesias’s ouster. Senior Counselor to the President Karl Rove bragged about Iglesias’s dismissal by proclaiming ‘he’s gone’ to the New Mexico Republican Party Chairman, who had previously complained to Rove about Iglesias.”

* * *

This chain of events troubles McKay who wrote in his law review article that former Attorney General Gonzales ultimately approved Iglesias’s termination with the full knowledge that it was based on partisan politics.

Gonzales admitted “he took multiple phone calls from Domenici concerning [Iglesias], urging that he be replaced, and has admitted that [President Bush] spoke with him about the ‘problems’ with Iglesias,” McKay wrote.
”Gonzales has even admitted that one of the reasons that Iglesias was fired was because Senator Domenici had “lost confidence” in Iglesias. “While these allegations are troubling under any analysis, a thorough and independent investigation is necessary to determine whether criminal laws have been violated,” McKay added. “Among the considerations facing the inspector general is whether the actions of former Attorney General Gonzales constituted obstruction of justice by removing Iglesias.”

Don’t hold your breath waiting for justice. No attorney employed by the Michael Mukasey-led Department of Justice will initiate an investigation of and pursue a criminal prosecution against Alberto Gonzales. As Leopold reports, they’re too busy fighting voter fraud:

Recently, the OPR contacted Iglesias’s former executive assistant, Rumaldo Armijo, to interview him about whether he was pressured by Pat Rogers, a Republican attorney in Albuquerque, and Mickey Barnett, a Republican lobbyist, to bring charges of voter fraud against Democrats in the state, Iglesias confirmed when asked about the matter during an interview.

Rogers was affiliated with the American Center for Voting Rights, a now defunct non-profit organization that sought to defend voter rights and increase public confidence in the fairness and outcome of elections. However, it has since emerged that the organization played a major role in suppressing the votes of people who intended to cast ballots for Democrats in various states. Rogers is also the former chief counsel to the New Mexico Republican Party, and was tapped by Domenici to replace Iglesias as US Attorney for New Mexico.

Rogers did not respond to emails seeking comment.

Armijo was also unavailable for comment. During his tenure in the US attorney’s office he was in charge of issues related to voter fraud in New Mexico. Iglesias said in an interview that he launched an in-depth investigation into claims of voter fraud in New Mexico and found the allegations to be “non-provable in court.” He said he is certain that his firing was due, in part, to the fact that he would not file criminal charges of voter fraud in New Mexico. Iglesias added that, based on evidence that had surfaced thus far and “Karl Rove’s obsession with voter fraud issues throughout the country,” he now believes GOP operatives had wanted him to go after Democratic-funded organizations in an attempt to swing the 2006 midterm elections to Republicans.

Armijo spoke to the Senate Ethics Committee last year about numerous telephone calls and emails dating back to 2005 he received from Rogers related to voter fraud, and Iglesias’s alleged failure to investigate the matter while Iglesias was US attorney, Iglesias confirmed.

Last May, House Democrats released a transcript of an interview congressional investigators had with one of Gonzales’s senior Justice Department staffers, Matthew Friedrich, in which Friedrich recounted that over breakfast in November 2006, Rogers and Barnett told him they were frustrated about Iglesias’s refusal to pursue cases of voter fraud and that they had spoken to Karl Rove and Domenici about having Iglesias fired.

“I remember them repeating basically what they had said before in terms of unhappiness with Dave Iglesias and the fact that this case hadn’t gone anyplace,” Friedrich said, according to a copy of the interview transcript. “It was clear to me that they did not want him to be the US attorney. And they mentioned that they had essentially . . . they were sort of working towards that.”

According to media reports, Rogers said he does not recall speaking to Rove about Iglesias.

Additionally, Barnett and Rogers met with Monica Goodling, the Justice Department’s White House liaison, in June 2006 to complain that Iglesias was ignoring voter fraud. Goodling’s meeting with Rogers and Barnett took place at the urging of a colleague. Rogers also drafted a lengthy letter that he sent to Domenici detailing what he claimed were Iglesias’s prosecutorial failures, Iglesias said he had been told.

Allen Weh, the New Mexico Republican Party chairman, told McClatchy Newspapers in March that he urged Rove to use his influence to have Iglesias fired because Weh was unhappy with Iglesias’s alleged refusal to bring criminal charges against Democrats in a voter fraud investigation.

At best, nothing will happen until Attorney General John Edwards(?) can order an investigation on January 21, 2009. But the fact that justice will not be served by the Department of Justice does not mean that justice must be denied:

ANY person residing in ANY state can file a grievance against Alberto Gonzales.

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Alberto Gonzales

This morning, Attorney General Alberto Gonzales announced that he will leave the Department of Justice, after two and a half years of service to the department. Al Gonzales is a man of integrity, decency and principle. And I have reluctantly accepted his resignation, with great appreciation for the service that he has provided for our country. * * * After months of unfair treatment that has created a harmful distraction at the Justice Department, Judge Gonzales decided to resign his position, and I accept his decision. It’s sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud for political reasons.

President George W. Bush, August 27, 2007

Personal Information:

Name: Gonzales, Alberto
Bar: Texas
ID No: No. 8118550
Status: Active

Grievance Information: Texas

Bar Home Page: State Bar of Texas
Main Grievance Page: Texas Client Assistance & Grievance
Ethics Rules: Texas Procedural and Conduct Rules
Complaint Form: Office of the Chief Disciplinary Counsel Grievance Form (.pdf)
Attorney Search: Texas Member Directory

Allegations:

Knowing Attempt to Coerce Execution of Legal Document by Incompetent Person

On March 4, 2004, then-Attorney General John Ashcroft was stricken with pancreatitis for which he underwent gall bladder surgery. Prior to being admitted to the hospital, Ashcroft executed a formal document transferring the powers and responsibilities of the office of Attorney General to his Deputy Attorney General James Comey. This transfer of power was communicated to the White House. Knowing specifically that Ashcroft had both transferred power to Comey and had also not reclaimed his position, Alberto Gonzales, then-White House Counsel, visited the hospital intensive care bedside of Ashcroft on March 10, 2004 in an attempt to pressure Ashcroft to execute a legal document as the Attorney General. Ashcroft, who was barely conscious at the time, refused. Testifying to the Senate Judiciary Committee, acting-Attorney General James Comey stated that

I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.

Comey further testified that, after witnessing Gonzales’ visit, that

I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general.

An excerpt of Comey’s testimony to the Senate Judiciary Committee on May 15, 2007, further explains the improper conduct of Gonzales:

COMEY: We had — yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed.

The attorney general was taken that very afternoon [March 4, 2007] to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.

And over the next week — particularly the following week, on Tuesday — we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail, which I will not go into here. Nor am I confirming it’s any particular program. That was Tuesday that we communicated that.

The next day was Wednesday, March the 10th, the night of the hospital incident. And I was headed home at about 8 o’clock that evening, my security detail was driving me. And I remember exactly where I was — on Constitution Avenue — and got a call from Attorney General Ashcroft’s chief of staff telling me that he had gotten a call…

SCHUMER: What’s his name?

COMEY: David Ayers. That he had gotten a call from Mrs. Ashcroft from the hospital. She had banned all visitors and all phone calls. So I hadn’t seen him or talked to him because he was very ill. And Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the president himself, but I don’t know that for sure. It came from the White House. And it came through and the call was taken in the hospital.

So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and — with whom I’d been discussing this particular matter and had been a great help to me over that week — and told him what was happening. He said, “I’ll meet you at the hospital right now.”

Told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital. I got out of the car and ran up — literally ran up the stairs with my security detail.

SCHUMER: What was your concern? You were in obviously a huge hurry.

COMEY: I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly. And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and the attorney general and maybe medical personnel in the room. No other Justice Department or government officials.

COMEY: Just the three of us at that point. I tried to see if I could help him get oriented. As I said, it wasn’t clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room.

I was shortly joined by the head of the Office of Legal Counsel assistant attorney general, Jack Goldsmith, and a senior staffer of mine who had worked on this matter, an associate deputy attorney general. So the three of us Justice Department people went in the room. I sat down…

SCHUMER: Just give us the names of the two other people.

COMEY: Jack Goldsmith, who was the assistant attorney general, and Patrick Philbin, who was associate deputy attorney general.

I sat down in an armchair by the head of the attorney general’s bed. The two other Justice Department people stood behind me. And Mrs. Ashcroft stood by the bed holding her husband’s arm. And we waited.

And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, “But that doesn’t matter, because I’m not the attorney general.”

SCHUMER: But he expressed his reluctance or he would not sign the statement that they — give the authorization that they had asked, is that right?

COMEY: Yes. And as he laid back down, he said, “But that doesn’t matter, because I’m not the attorney general. There is the attorney general,” and he pointed to me, and I was just to his left. The two men did not acknowledge me. They turned and walked from the room. And within just a few moments after that, Director Mueller arrived. I told him quickly what had happened. He had a brief — a memorable brief exchange with the attorney general and then we went outside in the hallway.

SCHUMER: OK. Now, just a few more points on that meeting. First, am I correct that it was Mr. Gonzales who did just about all of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK. And they made it clear that there was in this envelope an authorization that they hoped Mr. Ashcroft — Attorney General Ashcroft would sign.

COMEY: In substance. I don’t know exactly the words, but it was clear that’s what the envelope was.

SCHUMER: And the attorney general was — what was his condition? I mean, he had — as I understand it, he had pancreatitis. He was very, very ill; in critical condition, in fact.

COMEY: He was very ill. I don’t know how the doctors graded his condition. This was — this would have been his sixth day in intensive care. And as I said, I was shocked when I walked in the room and very concerned as I tried to get him to focus.

SCHUMER: Right. OK. Let’s continue. What happened after Mr. Gonzales and Card left? Did you have any contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up to us and said that I had an urgent call in the command center, which was right next door. They had Attorney General Ashcroft in a hallway by himself and there was an empty room next door that was the command center. And he said it was Mr. Card wanting to speak to me.

I took the call. And Mr. Card was very upset and demanded that I come to the White House immediately. I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.

He replied, “What conduct? We were just there to wish him well.”

And I said again, “After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.”

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded — the department as a whole — was unable to be certified as to its legality. And that was my concern.

(Emphasis added.)

Robert S. Mueller, Director of the FBI, arrived at Ashcroft’s hospital room moments after Gonzalez left. In notes memorializing his observations of Ashcroft, Mueller described Ashcroft as “feeble, barely articulate, clearly stressed.”

Mr. Ashcroft himself confirms Mr. Comey’s observation that Mr. Ashcroft was ‘a very sick man’ and Mr. Mueller’s observation that Mr. Ashcroft was ‘feeble, barely articulate, clearly stressed.’ In Never Again – Securing America and Restoring Justice, former Attorney General John Ashcroft described his stay in the hospital and the subsequent period of recuperation in this manner (emphasis supplied):

They tubed me up with intravenous lines so they could shut down my pancreas and digestive system. … I felt weak and emaciated, but my doctors assured me that when they got me patched up, [i.e., removed his gall bladder,] over time, I’d be close to good as new.

The doctors kept me in intensive care, lying on my back for almost ten full days, pumping me full of antibiotics and morphine. They then sent me home, where I needed another three (3) weeks to recuperate. Following my bout with acute pancreatitus and the necessary surgery, I returned to work in the early spring of 2004. I had relinquished my official responsibilities as attorney general during my stay in the hospital and through the recuperation. I was in no position to exercise judgment or to make decisions on behalf of the United States Government.

John Ashcroft, Never Again – Securing America and Restoring Justice, p.235.

Clearly, Mr. Comey’s statement that he was concerned that Mr. Gonzales was trying ‘to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded — the department as a whole — was unable to be certified as to its legality’ is supported by the facts. Mr. Gonzales’ explanation, however, does not.

In explaining his conduct, Gonzales testified to the Senate Judiciary Committee on July 24, 2007 that he went to the Ashcroft’s hospital at the behest of the “Gang of Eight” bipartisan congressional leaders who, according to Gonzales, had demanded that the program continue. Former Senator Tom Daschle, a member of the Gang of Eight, however, states that:

I have no recollection of such a meeting and believe that it didn’t occur. I am quite certain that at no time did we encourage the AG or anyone else to take such actions. This appears to be another attempt to rewrite history just as they have attempted to do with the war resolution.

Additionally, Gonzales’ testimony was further contradicted by other members of the Gang of Eight:

Rep. Nancy Pelosi (Calif.) and Sen. John D. Rockefeller IV (W.Va.), who were briefed on the program at the time, said there was no consensus that it should proceed. Three others who were at the meeting also said the legal underpinnings of the program were never discussed.

“He once again is making something up to protect himself,” Rockefeller said of the embattled attorney general.

Ashcroft undergoes successful gall bladder removal, doctor says, USA Today, March 9, 2004

White House pressed Ashcroft on wiretaps , USA Today, May 15, 2007

Gonzales slammed for visiting hospitalized Ashcroft on wiretapping, USA Today, May 15, 2007

Transcript of testimony of Deputy Attorney General James Comey to Senate Judiciary Committee , Salon.com, May 15, 2007

In sickbed showdown, principle trumps power , USA Today, May 16, 2007

Senators renew call for Gonzales’ resignation, USA Today, May 16, 2007

Leahy asks Gonzales to clarify testimony, USA Today, July 18, 2007

Attorney General faces new questions, USA Today, July 19, 2007

Daschle: Gonzales Trying to “Rewrite History” by Blaming Congress for Ashcroft Spying Crisis, TPMMuckraker, July 24, 2007

Pelosi: I Objected to Spying When Comey Did, TPMMuckraker, July 24, 2007

Gonzales, Senators Spar on Credibility, Dan Eggen and Paul Kane. July 25, 2007

FBI chief’s notes detail Ashcroft visit, USA Today, August 16, 2007

Special Gonzales Top 10 (video), Talking Points Memo, August 28, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

False Statement to Congress

In testimony before the Senate Judiciary Committee on February 6, 2007, Gonzales testified about a White House Situation Room briefing to inform congressional leaders about the pending expiration of and DoJ objections to an unidentified program. Then-Deputy Attorney General Jim Comey led the objections and questioned the program’s legality. Specifically, Gonzales stated that:

The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program. … It was not [about a program called the Terror Surveillance Program]. It was about other intelligence activities.

According to the Washington Post,

Gonzales, testifying for the first time in February 2006 about the Terrorist Surveillance Program, which involved eavesdropping on phone calls between the United States and places overseas, told two congressional committees that the program had not provoked serious disagreement involving Comey or others. “None of the reservations dealt with the program that we are talking about today,” Gonzales said then. No Dissent on Spying, Says Justice Dept. , Washington Post, R. Jeffrey Smith, May 17, 2007

The New York Times adds that

Mr. Gonzales insisted before the Senate this week that the 2004 dispute did not involve the Terrorist Surveillance Program “confirmed” by President Bush, who has acknowledged eavesdropping without warrants but has never acknowledged the data mining. Mining of Data Prompted Fight Over U.S. Spying , New York Times, Scott Shange and David Johnston, July 29, 2007

However, a May 17, 2006 memo from then-Director of National Intelligence John Negroponte addressed to then-House Speaker Dennis Hastert confirms that the briefing on March 10, 2004, was indeed about the TSP and detailed “the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program[.]” As noted by reporter Spencer Ackerman,

As the world knows, Gonzales testified on Tuesday that James Comey, the former deputy attorney general, may have had legal objections to … to… well, to some “intelligence activities” by the Bush administration, but not to the surveillance program announced by President Bush in December 2005, known as the Terrorist Surveillance Program. Stunned lawmakers immediately began talking about perjury charges: the previously-unknown “program” came as very convenient for Gonzales, who had told the Senate on February 6, 2006 that no one within the Justice Department had dissented from the program the “president described.”

* * *

If Gonzales concedes that the March 10, 2004 meeting was about the TSP, he’ll be conceding that Comey’s objections were indeed about the TSP — and that means that his February 6, 2006 testimony misled the Senate. In other words, unless Gonzales can prove that the March 10, 2004 meeting wasn’t about the TSP, he’s going to be hounded by perjury charges for the rest of his tenure.

Additionally, Jack Goldsmith testified on October 1, 2007, that

And counter to former Attorney General Alberto Gonzales’ testimony to Congress, Goldsmith said there were “enormous disagreements about many aspects of the Terrorist Surveillance Program.” Goldsmith repeatedly used the plural when describing those disagreements, making it clear that it was not a single aspect of the program that was at issue. Goldsmith: Legal Basis for Surveillance Program was “Biggest Mess” , TPMMuckraker, October 1, 2007

Senators renew call for Gonzales’ resignation, USA Today, May 16, 2007

Another Surveillance Program or a Lie?, TPMMuckraker, May 22, 2007

Ashcroft: Officials fought over snooping, USA Today, June 21, 2007

Leahy to Gonzales: Start Trying to Remember Now, TPMMuckraker, July 18, 2007

Today’s Must Read, TPMMuckraker, July 18, 2007

Documents contradict Gonzales’ testimony, USA Today, July 25, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Attempt to Improperly Influence a Witness and False Statements to Congress

On May 23, 2007, former Justice Department aide Monica Goodling testified to the Senate Judiciary Committee that a conversation with Gonzales about his recollections of the dismissal of eight U.S. attorneys made her “uncomfortable.” According to Goodling in her testimony to Congress, Gonzales recounted his recollection of events surrounding the firing of up to nine (9) United States Attorneys before asking for her reaction. Goodling testified that Gonzales began telling Goodling what he remembered about the firing process and then asked her if she had “any reaction” to his memory. “I didn’t know that it was maybe appropriate for us to talk about that,” she said, adding that it made her “uncomfortable.” She said Gonzales’ comments discomfited her because both Congress and the Justice Department had already launched investigations of the dismissals. Additionally, Goodling’s testimony contradicted Gonzales’ testimony to Congress that he could not remember numerous details about the prosecutors’ dismissals because he had purposely avoided discussing the issue with other potential “fact witnesses.” This matter is also under investigation by the U.S. Department of Justice, Office of the Inspector General.

Goodling Testifies about Gonzales Meeting , TPMMuckraker, May 23, 2007

Letter to Sens. Leahy and Specter from US DoJ, OIG, TPMMuckraker, May 23, 2007

Gonzales Meeting With Aide Scrutinized , The Washington Post, June 15, 2007

Leahy asks Gonzales to clarify testimony, USA Today, July 18, 2007

Leahy to Gonzales: Start Trying to Remember Now, TPMMuckraker, July 18, 2007

Gonzales: Witness Tampering? No, It Was Witness Consolation, TPMMuckraker, July 24, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 3.04 Fairness in Adjudicatory Proceedings
  3. Rule 3.05 Maintaining Impartiality of Tribunal
  4. Rule 3.10 Advocate in Nonadjudicative Proceedings
  5. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Complicity in Violations of the Presidential Records Act

During investigation of the firing of nine (9) United States Attorneys, the House Oversight and Government Reform Committee learned that Republican National Committee e-mail accounts, that were supposed to be used only to conduct political work, were in fact used to evade the federal law on retaining presidential records. The existence of such communications were discovered in the investigation of the firing of nine (9) U.S. attorneys last year. In a letter to White House Counsel Fred Fielding, Rep. Henry Waxman noted e-mails from senior aides who were using the RNC and other e-mail accounts that were controlled by the Bush-Cheney ’04 campaign.

Since March, the Committee has been examining why White House officials used e-mail
accounts operated and controlled by the Republican National Committee for official government
business, apparently in violation of the Presidential Records Act. I am writing to request your
assistance in obtaining documents and interviews relevant to the Committee’s investigation.
On June 18,2007 ,I released an interim report prepared by the majority staff on the status
of the Committee’s investigation. This report found that at least 88 White House officials had
RNC e-mail accounts, more than the White House had previously acknowledged. It also found
that although the RNC has preserved 674,367 e-mails to or from White House officials on RNC
accounts, there was extensive destruction by the RNC of White House e-mails. Of the 88 White
House officials who received RNC e-mail accounts, the RNC preserved no e-mails for 51
officials. In general, the RNC appears to have destroyed most of the e-mails sent or received by
White House officials prior to 2006.

The interim report described evidence that the Office of White House Counsel under
Alberto Gonzales may have known that White House officials were using RNC e-mail accounts
for official business, but took no action to preserve these presidential records. In a deposition
before the Committee on May 10, 2007, Susan Ralston, Karl Rove’s former executive assistant,
testified that she and Mr. Rove searched for e-mails on his political accounts in response to
requests from two separate investigations. Ms. Ralston stated that in 2001, Mr. Rove was asked
to search his political computer in response to a request relating to an investigation involving
Enron. She testified that the White House Counsel’s office would have known about these searches “because all of the documents that we collected were then turned over to the White
House Counsel’s office.”2 According to Ms. Ralston, this investigation was related to the Vice
President’s energy task force and contacts with Enron.’

In addition, Ms. Ralston testified that Mr. Rove searched his RNC e-mail account in
response to several subpoenas from Patrick Fitzgerald during the investigation into the leak of
the identity of CIA officer Valerie Plame Wilson. She testified that the White House Counsel’s
office also knew about these searches and received copies of the search results.

It would be a matter of serious concern if Mr. Gonzales or other attorneys in the Office of
White House Counsel were aware that White House officials were using RNC e-mail accounts to
conduct official White House business, but ignored these apparent violations of the Presidential
Records Act.

Letter from Rep. Henry Waxman to Fred Fielding, July 25, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.03 Reporting Professional Misconduct (regarding any improper use of e-mails by Harriet Miers)
  3. Rule 8.04 Misconduct

False Statements to Congress regarding abuses of USA Patriot Act by FBI

In testimony to the Senate seeking to renew the USA Patriot Act two years ago, Gonzales testified that the FBI had not abused its use of national security letters. Specifically, he stated on April 27, 2005 that “There has not been one verified case of civil liberties abuse.” However , six (6) days earlier,

the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

The acts recounted in the FBI reports included unauthorized surveillance, an illegal property search and a case in which an Internet firm improperly turned over a compact disc with data that the FBI was not entitled to collect, the documents show. Gonzales was copied on each report that said administrative rules or laws protecting civil liberties and privacy had been violated.

The reports also alerted Gonzales in 2005 to problems with the FBI’s use of an anti-terrorism tool known as a national security letter (NSL), well before the Justice Department’s inspector general brought widespread abuse of the letters in 2004 and 2005 to light in a stinging report this past March.

Gonzales Was Told of FBI Violations , John Solomon, Washington Post, July 10, 2007

When Did AG Gonzales Know About FBI Abuses? , TPMMuckraker, July 10, 2007

Today’s Must Read , TPMMuckraker, July 10, 2007

Gonzales: NSL Abuses Weren’t Really Abuses , TPMMuckraker, July 24, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Conflict of Interest and/or Failure to Procure Written Waiver of Conflict

Murray Waas of the National Journal, writes that

Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration’s warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.

Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work.

It is unclear whether the president knew at the time of his decision that the Justice inquiry — to be conducted by the department’s internal ethics watchdog, the Office of Professional Responsibility — would almost certainly examine the conduct of his attorney general.

Sources familiar with the halted inquiry said that if the probe had been allowed to continue, it would have examined Gonzales’ role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general.

Both the White House and Gonzales declined comment on two issues — whether Gonzales informed Bush that his own conduct was about to be scrutinized, and whether he urged the president to close down the investigation, which had been requested by Democratic members of Congress.

* * *

Stephen Gillers, a law professor at the New York University School of Law and an expert on legal ethics issues, questioned Gonzales’s continued role in advising Bush in any capacity about the probe after he learned that his own conduct might be scrutinized: “If the attorney general was on notice that he was a person of interest to the OPR inquiry, he should have stepped aside and not been involved in any decisions about the scope or the continuation of the investigation.”

Bush Blocked Justice Department Investigation, Murray Waas, National Journal, July 18, 2006

Internal Affairs, Murray Waas, National Journal, March 15, 2007

Gonzales: Don’t Blame Me, Blame Bush, TPMMuckraker, March 23, 2007

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

The Case Against Gonzales , The Anonymous Liberal, July 27, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.04 Misconduct

Texas Professional Ethics Opinion:

OPINION 325, December 1966
[Citing] Opinion 173 (March, 1968):
“Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the Court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice.”
The same policy carries forward to the conduct of an attorney after his retirement from public office and he should not accept employment in any matter which might be calculated to arouse suspicion of impropriety in the public mind.

OPINION 367, March 1974
Ethical Consideration 9-3 of the Code of Professional Responsibility provides “after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.

OPINION 441, March 1987
Tex. Comm. on Professional Ethics, Op. 441, V. 50 Tex. B.J. 618 (1987)
A lawyer may not represent an interest adverse to a client’s or a former client’s interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest.

OPINION 494, February 1994
Tex. Comm. on Professional Ethics, Op. 494, V. 57 Tex. B.J. 786 (1994)
Is an attorney disqualified from representing a client in a situation where the husband had a brief consultation with the attorney in 1986, and the wife consulted the attorney in a subsequent divorce action in 1992?
* * *
Were the factual matters involved in the representation so related that there is a genuine threat that confidences gained in the former representation will be divulged to the attorney’s present client?
ANSWER
Yes. The wife seeks to have the attorney represent her in a divorce from her husband, after the husband consulted with the attorney about a possible divorce from his wife. Obviously this factor is met. In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney’s duty to preserve a client’s confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.
CONCLUSION
The attorney’s representation of the wife would be in violation of the Texas Disciplinary Rules of Professional Conduct.

OPINION 527, April 1999
Tex. Comm. on Professional Ethics. Op. 527, V. 62 Tex. B.J. 4 (1999)
SUMMARY OF APPLICABLE RULE
Prior applicable ethics opinions, decisions of the Texas Supreme Court, and the provisions of Rule 1.09 may be summarized as follows:
1. Rule 1.09 prohibits an attorney who has personally represented a former client from representing a person in a matter adverse to the former client if such new representation would violate any of the provisions of Rule 1.09(a).
2. If an attorney is prohibited under Rule 1.09(a) from accepting a representation adverse to a former client, each attorney currently associated with such disqualified attorney is vicariously prohibited from accepting such representation under Rule 1.09(b).
3. If an attorney who personally represented a former client leaves a law firm, the lawyers who remain at the firm are thereafter prohibited from knowingly representing a person adverse to that former client only if a lawyer presently associated with the firm is personally disqualified from accepting the representation under Rule 1.09(a) or the firm’s proposed representation involves the validity of the departed lawyer’s legal services or work product for such former client while he was associated with the firm, or the proposed representation will with reasonable probability involve a violation of Rule 1.05 with respect to the confidential information of such former client.
4. If, as in this ethics opinion, a lawyer terminates his association with a law firm and such firm retains as a client a person whom the departing lawyer personally represented while he was associated with the firm, any subsequent representation by the departed lawyer adverse to such former client is governed by Rule 1.09(a). And, all lawyers currently associated with the departed lawyer are treated the same by reason of Rule 1.09(b). The departed lawyer and members of his new firm can represent a person adverse to such former client only if the representation does not violate Rule 1.09(a)(1),(2), or (3).

False Statements to Congress regarding Intentions to appoint US Attorneys pursuant to USA Patriot Act

On January 18, 2007, Alberto Gonzales testified before the Senate Judiciary Committee and stated:

“I am fully committed, as the administration’s fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney.”

CAUGHT ON TAPE: Gonzales Lies Under Oath, Think Progress, March 16, 2007

Again on April 19, 2007, Gonzales testified that had rejected a White House plan to appoint United States Attorneys pursuant to recent amendments to the USA Patriot Act which would permit the Attorney General to appoint United States Attorneys without having the appointments confirmed by the United States Senate and further stated that he never considered the plan. However, Gonzales’ former chief of staff Kyle Sampson testified in March to the Senate Judiciary Committee that Gonzales did not reject the idea of circumventing the Senate until after Gonzales had spoken with Sen. Mark Pryor (D-AR) in mid-December about Tim Griffin’s appointment as a United States Attorney in Arkansas. Sampson testified that he did discuss the idea with Gonzales and that Gonzales did not reject the outright.

Schumer Tears into Gonzales, TPMMuckraker, April 19, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Conflict of Interest

In his letter to Senator Patrick Leahy and Congressman Paul Hodes, Attorney Paul Twomey states:

We are writing to you in order to bring to your attention to what appears to be disturbing evidence of a pattern of political interference in the Department of Justice’s investigation of the phone jamming in 2002 United States Senate election in the State of New Hampshire.

On November 5, 2002, operatives working on behalf of the New Hampshire Republican Party entered into a criminal conspiracy which had as its goal the total disruption of the political communications of the New Hampshire Democratic Party in order to gain an unfair advantage in what was a very closely contested United States Senate election. To date, four individuals have been indicted and convicted including Charles McGee, the 2002 Executive Director of the Republican Party and James Tobin, a long time Republican operative who was at that time Regional Political Director for both the Republican National Committee (RNC) and the National Republican Senatorial Committee. (NRSC)

Additionally, a civil suit was brought on behalf of the New Hampshire Democratic Party against the New Hampshire Republican State Committee, the Republican National Committee and the National Republican Senatorial Committee. Throughout both the criminal prosecution and the civil suit, there were repeated actions of commission and omission on the part of the Department of Justice that give rise to serious questions as to whether or not there was political interference which operated to distort the judicial process.

* * *

After the filing of the criminal charges when an attorney acting for the Democratic Party, Finis Williams, was informed by the prosecutor that the delays were
due to the extreme difficulty in obtaining authorization from higher levels at DOJ for any and all actions in the case. We have been further informed by Attorney John Durkin (counsel for Republican criminal defendants, Allen Raymond) that he was told by a DOJ prosecutor that all decisions in this case had to be made subject to the approval of the Attorney General himself who had to sign off on all actions in this case. As will be discussed below, the two individuals who served as Attorney General during this case both have actual conflicts of interest that would appear to rule out ethical involvement in the investigation and prosecution of the phone jamming.

* * *

As stated above, prosecutors in this case have indicated that both that the slow pace of this case has been occasioned by delays caused by individuals at the highest levels of the Department of Justice and that all decisions had to be reviewed by the Attorney General himself. Given the extreme and critical importance of an assault on free elections by high officials in a major political party, is it certainly appropriate for attention to be given to the case by at the highest levels at the Department of Justice. However, the attention so given should be of assistance in the expeditious and efficacious prosecution of those involved. In this case, however, the attention of the higher ups in the Justice Department served only to delay, if not deny, justice.

Both Attorney General’s Ashcroft and Gonzalez had personal conflicts of interest which should have resulted in them recusing themselves from all action in the case. Attorney General Ashcroft, at the time of these events, had recently been a United States Senator and a member of the National Republican Senatorial Committee, one of the organizations for which James Tobin was working when he undertook his criminal activities. The conflict for Attorney General Gonzalez is even more apparent. At the time of the phone jamming, Attorney General Gonzales was legal counsel to the White House. During the course of the criminal conspiracy, defendant, James Tobin, made literally hundreds of calls to the political office of the White House. In the civil case, a deposition was taken of Alicia Davis, Deputy to Ken Mehlman, who was then the Political Director of the White House regarding her conversations with both Tobin and Jayne Millerick, a Republican operative on Election Day 2002. The New Hampshire Democratic Party sought to have documents produced from the White House concerning these contacts. (This request was denied by the White House on the grounds of executive privilege, although the documents sought only related to the non-official actions of the White House Political Office would not appear to be subject to executive privilege. In fact, the phone records sought were for phones that could not be paid by public funds according to the terms of the Hatch Act).

It is perfectly clear that there were significant questions regarding the involvement of the political office of the White House in this case. When it came to light that the Republican National Committee had paid several million dollars for the legal fees of James Tobin, former, RNC Chair Gillespie told a reporter that the decision to pay these legal fees made in consultation with the White House.
As Attorney General Gonzalez was then counsel for the White House, it is totally inappropriate for him to have taken any part in investigation and prosecution of the phone jamming case where part of the inquiry would involve the possible involvement of individuals working for the White House.

Letter to Sen. Leahy and Cong. Hodes, Paul Twomey, Esq., March 21, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 325, December 1966
[Citing] Opinion 173 (March, 1968):
“Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the Court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice.”
The same policy carries forward to the conduct of an attorney after his retirement from public office and he should not accept employment in any matter which might be calculated to arouse suspicion of impropriety in the public mind.

OPINION 367, March 1974
Ethical Consideration 9-3 of the Code of Professional Responsibility provides “after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.

OPINION 441, March 1987
Tex. Comm. on Professional Ethics, Op. 441, V. 50 Tex. B.J. 618 (1987)
A lawyer may not represent an interest adverse to a client’s or a former client’s interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest.

OPINION 494, February 1994
Tex. Comm. on Professional Ethics, Op. 494, V. 57 Tex. B.J. 786 (1994)
Is an attorney disqualified from representing a client in a situation where the husband had a brief consultation with the attorney in 1986, and the wife consulted the attorney in a subsequent divorce action in 1992?
* * *
Were the factual matters involved in the representation so related that there is a genuine threat that confidences gained in the former representation will be divulged to the attorney’s present client?
ANSWER
Yes. The wife seeks to have the attorney represent her in a divorce from her husband, after the husband consulted with the attorney about a possible divorce from his wife. Obviously this factor is met. In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney’s duty to preserve a client’s confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.
CONCLUSION
The attorney’s representation of the wife would be in violation of the Texas Disciplinary Rules of Professional Conduct.

OPINION 527, April 1999
Tex. Comm. on Professional Ethics. Op. 527, V. 62 Tex. B.J. 4 (1999)
SUMMARY OF APPLICABLE RULE
Prior applicable ethics opinions, decisions of the Texas Supreme Court, and the provisions of Rule 1.09 may be summarized as follows:
1. Rule 1.09 prohibits an attorney who has personally represented a former client from representing a person in a matter adverse to the former client if such new representation would violate any of the provisions of Rule 1.09(a).
2. If an attorney is prohibited under Rule 1.09(a) from accepting a representation adverse to a former client, each attorney currently associated with such disqualified attorney is vicariously prohibited from accepting such representation under Rule 1.09(b).
3. If an attorney who personally represented a former client leaves a law firm, the lawyers who remain at the firm are thereafter prohibited from knowingly representing a person adverse to that former client only if a lawyer presently associated with the firm is personally disqualified from accepting the representation under Rule 1.09(a) or the firm’s proposed representation involves the validity of the departed lawyer’s legal services or work product for such former client while he was associated with the firm, or the proposed representation will with reasonable probability involve a violation of Rule 1.05 with respect to the confidential information of such former client.
4. If, as in this ethics opinion, a lawyer terminates his association with a law firm and such firm retains as a client a person whom the departing lawyer personally represented while he was associated with the firm, any subsequent representation by the departed lawyer adverse to such former client is governed by Rule 1.09(a). And, all lawyers currently associated with the departed lawyer are treated the same by reason of Rule 1.09(b). The departed lawyer and members of his new firm can represent a person adverse to such former client only if the representation does not violate Rule 1.09(a)(1),(2), or (3).

False Statements to Congress regarding reasons for firing nine (9) US Attorneys

Gonzales testified to the Senate Judiciary Committee that he would ‘never, ever make a change in a United States attorney position for political reasons…. I just would not do it.” This is claim is directly contrary to the known facts that United States Attorney Bud Collins and other United States Attorneys were asked to resign so that Tim Griffin, as a replacement for Mr. Collins, and others to “build there resumes [and] get in (sic) experience Attorney as a United States attorney.”

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

False Statements to Congress regarding Conversations with Senator Pete Domenici

Gonzales testified to the Senate Judiciary Committee that in a conversation that occurred he spoke to Senator Pete Domenici who, according to Sen. Domenici, criticized the performance of United States Attorney David Iglesias. William Moschella, an attorney with DoJ, testified that he was present during each of these phone conferences, that it was his impression that each conversation regarded only the allocation of additional funding and that Gonzales had never relayed to him that the calls were critical of Iglesias. An e-mail regarding a phone conference further states that “Senator Domenici would like to talk to the AG regarding his concerns about staffing shortages” which supports Mr. Moschella’s contention that that conversation(s) were about funding issues only.

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Failure to report Unethical Conduct

Then-White House Counsel Harriet Miers was properly served with a compulsory subpoena issued by the House Judiciary Committee. Claiming executive privilege, Ms. Miers failed to appear before the relevant tribunal. Gonzales knew about the compulsory subpoena and provided legal advise to Ms. Miers through the Department of Justice that application of the privilege obviated her need to even appear before the tribunal.

And as noted above, in his letter to White House Counsel Fred Fielding, Rep. Henry Waxman noted e-mails from senior aides who were using the RNC and other e-mail accounts that were controlled by the Bush-Cheney ’04 campaign:

It would be a matter of serious concern if Mr. Gonzales or other attorneys in the Office of
White House Counsel were aware that White House officials were using RNC e-mail accounts to
conduct official White House business, but ignored these apparent violations of the Presidential
Records Act.

Letter from Rep. Henry Waxman to Fred Fielding, July 25, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.03 Reporting Professional Misconduct
  3. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 520, May 1997
Tex. Comm. on Professional Ethics, Op. 520, V. 60 Tex. B.J. 490 (1997)
QUESTION
Does Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct require a lawyer to report suspected misconduct by another lawyer, when the first lacks solid proof that the second lawyer engaged in the suspected conduct?
DISCUSSION
Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct (Rules) provides in pertinent part:
(a) Except as permitted in paragraphs (c) or (d), [FN1] a lawyer having knowledge that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.
Comment three explains that Rule 8.03 “. . . describes only those disciplinary violations that must be revealed by the disclosing lawyer in order for that lawyer to avoid violating [the] rules.” (Emphasis added.) Comment four further elaborates by stating that Rule 8.03 “limits [a lawyer’s] reporting obligations to those offenses that a self-regulating profession must vigorously endeavor to prevent.” Hence a lawyer is required to report violations of the applicable rules of professional conduct that raise a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
Comment three, however, also provides that Rule 8.03 “is not intended to . . . limit those actual or suspected violations that a lawyer may report to an appropriate disciplinary authority.” (Emphasis added.) Rather, lawyers are instructed to use their best judgment in complying with the reporting requirements of the rule. See comment four.
With regard to a report of alleged misconduct, comment two recognizes that “. . . the existence of a violation [frequently] cannot be established with certainty until a disciplinary investigation . . . has been undertaken. Similarly, an apparently isolated violation may indicate a pattern of misconduct that only such an investigation or inquiry can uncover. Consequently, a lawyer should not fail to report an apparent disciplinary violation merely because he or she cannot determine its existence or scope with absolute certainty.”
The text of Rule 8.03(a), however, requires that a lawyer have knowledge (rather than suspicion) that another lawyer has committed a violation of the applicable rules before informing the appropriate disciplinary authority. A report of misconduct must therefore be based upon objective facts that are likely to have evidentiary support.
CONCLUSION
Rule 8.03(a) of the Texas Disciplinary Rules of Professional Conduct is limited to those disciplinary violation that must be revealed by the disclosing lawyer in order for that lawyer to avoid violating the rules. As recognized in the commentary, however, Rule 8.03(a) is not intended to limit the actual or suspected violations that a lawyer may report to an appropriate disciplinary authority. Before reporting an alleged violation, however, Rule 8.03(a) requires that a lawyer have knowledge that another lawyer has in fact committed a violation of the rules. A report of misconduct must therefore be based upon such objective facts that are likely to have evidentiary support. It is beyond the scope of this opinion to comment on specific facts that would constitute sufficient basis for a report of misconduct.

FN1–Paragraph (c) pertains to a lawyer who knows or suspects that another lawyer or judge is impaired by chemical dependency on alcohol or drugs, or by mental illness. Paragraph (d) pertains to the disclosure/non-disclosure of confidential information.

Text and comments of the Texas Rules of Professional Conduct violated by Mr. Gonzales