"Media Matters"; by Jamison Foser

Washingon Post ed board to readers: That was then

When news of the Bush administration's warrantless domestic spying operation broke, The Washington Post editorialized several times against the scheme. The Post's editorial board wrote that it indicated that the White House thought "the president is entitled to ignore a clearly worded criminal law," that it "shows a profound disregard for Congress and the laws it passes," that it "appears to violate the Foreign Intelligence Surveillance Act," and "must be forced to explain itself comprehensively."

But, as we noted, the Post did not call for an independent investigation. Instead, the Post simply (and ineffectually) stomped its feet and insisted that the Bush administration come clean on its own. The Post's behavior, as we explained, stood in stark contrast to the Post's treatment of President Clinton -- the paper once went so far as to call for an independent investigation of the Clintons despite acknowledging that there was "no credible charge" that they had done anything wrong.

Under pressure from the Post and other news organizations, Clinton asked his Justice Department to appoint an outside investigator to examine the incredible charges that ultimately proved baseless.

By contrast, the Bush administration -- blissfully free from pressure by news organizations like the Post to appoint a special counsel -- conducted an in-house "investigation" of the warrantless domestic spying operation. President Bush's Justice Department -- led by his old Texas crony Alberto Gonzales -- undertook the probe.

And, soon enough, Bush himself interceded to thwart that investigation by denying investigators the security clearance they needed to conduct the probe. In July 2006 testimony before the Senate Judiciary Committee, Gonzales revealed that earlier that year, President Bush personally blocked the investigators' access to information about the program.

Faced with the fact that President Bush had already demonstrated that he had no interest in allowing a real investigation of the program -- indeed, that he was willing to personally intercede to prevent such a probe -- The Washington Post responded by insisting that "Mr. Bush should permit the investigation."

To be fair, that isn't all the Post editorial said. Faced with a Republican-controlled Congress that had -- as even the Post editorial page had previously acknowledged -- repeatedly refused to conduct oversight of the Bush administration, the Post editorialized that, should Bush refuse to allow the investigation, "Congress needs to get more information about what has happened."

Needless to say, Bush didn't permit an investigation, and Congress didn't get the information. And the Post editorial page let the matter drop.

Eight months later, the National Journal's Murray Waas reported this week that, shortly before Gonzales advised Bush on whether to pull the plug on the investigation, Gonzales found out that the probe would likely focus on his own conduct. According to Waas, "It is unclear whether the president knew at the time of his decision that the Justice inquiry ... would almost certainly examine the conduct of his attorney general."

But, as Waas noted, Gonzales and Bush have a problem either way:

Current and former Justice Department officials, as well as experts in legal ethics, question the propriety of Gonzales's continuing to advise Bush about the investigation after learning that it might examine his own actions. The attorney general, they say, was remiss if he did not disclose that information to the president. But if Gonzales did inform Bush about the possibility and the president responded by stymieing the probe, that would raise even more-serious questions as to whether Bush acted to protect Gonzales, they said.

[...]

Charles Wolfram, a professor emeritus of legal ethics at Cornell University Law School, said that if Gonzales did not inform the president, Gonzales ill-served Bush and abused "the discretion of his office" for his own benefit. However, if Gonzales did inform Bush that the probe might harm Gonzales, then "both [men] are abusing the discretion of their offices," Wolfram said.

When the Post called for a special counsel to investigate "no credible charge" against the Clintons, the paper argued, "[I]t is in the public interest -- and in the president's as well -- to put the inquiry in independent hands." The Post explained:

Nor is it protection enough to say that the investigation is in the hands of career attorneys. To whom do they report? Who clears and vouches for their work? Two presidential appointees in the normal chain of prosecutorial command have already had to recuse themselves. There is no way even under the best of circumstances, which don't exist here, that a Justice Department in any administration can conduct a credible investigation involving a president to whom it is ultimately responsible. That's what's at issue in this matter -- and why an independent figure should be named.

Yet the Post did not apply that logic to domestic spying investigation -- even after Gonzales admitted the president personally quashed the investigation. Waas' report that Gonzales advised President Bush about the probe even after he knew that his own actions would likely be a key component of the investigation only makes the Post's inconsistency more glaring.

But if that still isn't enough, this week brought yet another illustration of the double standard the Post has applied to investigations of the Clinton and Bush administrations.

With a seemingly endless stream of new and damning revelations about the Bush administration's political purge of eight U.S. attorneys -- and a series of contradictory statements about the purge made by administration officials -- the Post's principle that "[t]here is no way ... that a Justice Department in any administration can conduct a credible investigation involving a president to whom it is ultimately responsible" would seem to apply now more than ever. Indeed, in this case, the Justice Department would be investigating itself in addition to the White House.

And there is, to be clear, a legal issue at play, not merely a political scandal, despite what some pundits have claimed. In calling for the appointment of a special counsel, Citizens for Responsibility and Ethics in Washington (CREW) explained:

In the past few months, Department of Justice (DOJ) officials have testified before Congress that the U.S. Attorneys were asked to resign for performance related reasons, that the White House was minimally involved in the firings and that the Department was in no way attempting to evade the confirmation process for new U.S. Attorneys.

Documents provided by the DOJ to Congress suggest that at least one high-ranking official, D. Kyle Sampson, knew that the statements made to Congress were untrue. If, as it appears, a Department of Justice official allowed other officials to provide inaccurate information to Congress, federal crimes may have been committed.

Federal law provides that if Sampson knew that he was causing DOJ officials to make inaccurate statements to Congress, he can be prosecuted for the federal crime of lying to Congress even though he did not personally make any statements to Congress. The Special Prosecutor should investigate not only Mr. Sampson's conduct but whether anyone else was involved in formulating the incomplete and erroneous congressional testimony or whether the officials who testified were aware that they were providing imperfect information to Congress.

And that was before ABC News' report that White House senior adviser Karl Rove was more involved in the prosecutor purge than had been previously disclosed. According to ABC:

New unreleased e-mails from top administration officials show that the idea of firing all 93 U.S. attorneys was raised by White House Deputy Chief of Staff Karl Rove in early January 2005, indicating Rove was more involved in the plan than the White House previously acknowledged. The e-mails also show how Alberto Gonzales discussed the idea of firing the attorneys en masse while he was still White House counsel -- weeks before he was confirmed as attorney general.

The e-mails put Rove at the epicenter of the imbroglio and raise questions about Gonzales' explanations of the matter.

Curiously, the Washington Post's news section has, as of this writing, failed to note CREW's call for a special prosecutor -- or even the specific legal issues CREW raised. In a March 16 front-page article about possible false statements to Congress by administration officials, the Post did report that the National Association of Criminal Defense Lawyers had called for a special prosecutor. But the Post didn't mention CREW's call, or note as CREW did that Sampson may have violated the law simply by allowing others to give Congress false information.

Considerably less surprising is that the Post's editorial page once again refuses to hold the Bush administration to the standard it applied to the Clinton administration. In 1994, the Post insisted on a special counsel to investigate the Clintons even in the absence of a single credible charge against them because the Post thought it impossible for a Justice Department to conduct a credible investigation of a president. But today, faced with a burgeoning scandal that involves not only the president and top White House aides but also the Department of Justice itself, the Post still does not demand the appointment of an outside investigator. Instead, it simply asks that "the entire story of the firings be uncovered."

This week alone has brought news that:

• After Gonzales learned that the Justice Department's investigation of the domestic spying operation would likely target his own conduct, he continued to advise Bush on the investigation. Bush then personally quashed the investigation -- a decision the Post called a "wildly inappropriate" move that "can only fuel suspicion." Prominent legal ethicists say it appears that Gonzales, Bush, or both abused their office.

• Bush, Rove, Gonzales, and then-White House counsel Harriet Miers were all involved, in varying degrees, with the decision to fire eight U.S. attorneys, some of whom were investigating prominent Republicans, and some of whom were the subject of complaints from Republican members of Congress that they were not prosecuting Democrats. Administration officials have made an array of contradictory claims about how and why the firings occurred, including statements to Congress that were apparently false. A government watchdog organization has called for a special prosecutor to investigate possible law-breaking by senior Justice Department officials.

We have, in other words, two separate scandals involving the Bush administration. In both cases, The Washington Post has editorialized that finding the truth is essential. In both cases, the investigators - in the Bush Justice Department -- are in the position of investigating the White House, which The Washington Post has editorialized is impossible for any Justice Department to do credibly. In both cases, the DOJ faces the added complication of conducting an investigation that must examine the actions of its more immediate boss, Attorney General Alberto Gonzales. In one case, Bush has already quashed the investigation in a move the Post editorialized against.

And in neither case has the Post called for the appointment of a special counsel.

The Post owes its readers an explanation. Why does the logic it used to insist that the Clinton administration appoint a special counsel to investigate "no credible charge" -- that the DOJ couldn't credibly conduct the investigation itself -- not apply now? Why does the Post continue to insist that the Bush administration disclose "the entire story," criticize the administration when it fails to do so, and then move on? Why doesn't the Post call for a special counsel?

The pressure The Washington Post placed on the Clinton administration helped lead to an independent counsel who spent tens of millions of taxpayer dollars investigating President Clinton's sex life.

The pressure The Washington Post refuses to place on the Bush administration has helped the administration avoid a special counsel investigation of, among other things, whether laws have been broken in connection with a warrantless domestic spying operation and whether the administration purged prosecutors in order to prevent investigations of its allies and encourage investigations of its political opponents.

Just today, the Post explicitly linked the current scandal to Whitewater in arguing that Bush should allow White House staff to testify before Congress: "President Bill Clinton's top aides were routinely hauled before Congress to testify on everything from Whitewater to presidential pardons." Beyond the Post's recognition in this case that the conduct of administration officials has been "misleading," it surely can take the next step to recognize "credible evidence" -- laid out clearly by CREW -- sufficient to justify the appointment of a special counsel.

In today's Post editorial -- which carries the laughable sub-headline "How to get the full story on the dismissals of eight U.S. attorneys" -- the paper calls for President Bush to "ensure that lawmakers get the full story." The Post knows how unlikely this is -- it has previously editorialized against the Bush administration's "stonewalling" of investigations and criticized the president's "wildly inappropriate" efforts to stymie investigations of his administration. Yet, absurdly, it continues to pretend that the way "to get the full story" is for Bush to "ensure" that it happens. When Bill Clinton was president, The Washington Post editorialized that it was impossible for an administration to police itself. Now, with George W. Bush as president, the Post suggests it's the only possibility.

If the Washington Post editorial board is going to hold the Clinton and Bush administrations to such wildly different standards, the least it can do is explain why. The Post once editorialized that no Justice Department can credibly investigate the president. Faced with even greater conflicts of interest and an administration it has repeatedly denounced for withholding the truth, if the Post editorial board apparently does not believe a special counsel is warranted, it owes readers an explanation why.

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In light of this report, it is worth noting that, even if Gonzales "resigns" today, that would not eliminate the questions raised about his conduct and that of other Justice and White House officials.

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We've previously detailed the bizarre Bush-era tendency of major newspaper editorial boards to disregard principles they held dear during the Clinton administration. The Chicago Tribune, for example, editorialized in 1998 that Clinton should resign because his statements about the Monica Lewinsky matter would make it difficult to trust him in the future: "Who will know when he's telling the truth and when he's not, whether he's being sincere or play-acting, whether his word is his bond or just another artful dodge?" Now, despite the fact that the American people long ago lost the ability to know when Bush is telling the truth about matters of war (latest example: An ABC News/Washington Post poll conducted last month found that fully 63 percent of Americans "cannot trust the Bush Administration to honestly and accurately report intelligence about possible threats from other countries?"), the Tribune stays silent. And The New York Times, like The Washington Post, called for a Whitewater special counsel in 1994. Yet, like the Post, the Times is strangely hesitant to do the same now, as we have repeatedly explained.