Evasive Maneuvers

The newly elected Democratic leaders in Congress are gearing up for a broad array of oversight hearings and investigations of the Bush administration. However, they are likely to butt heads with a Justice Department intent on thwarting their efforts -- as Republican Senators Charles Grassley of Iowa and Arlen Specter of Pennsylvania did recently when they tried to scrutinize administration actions.

The Justice Department, which serves as legal counsel in court proceedings for other departments, has repeatedly gone beyond merely protecting its own actions from scrutiny. Even when Congress was in Republican hands, Justice Department officials advised other government departments on how to stonewall congressional review. These efforts now appear to be ramping up.

The Justice Department Legal Counsel's office recently held meetings with lawyers of other departments to discuss strategy for responding to congressional requests for documents and hearing appearances. In January, Senator Grassley charged at a Senate Judiciary Committee hearing that the DOJ has started running training "events" for other offices of the executive branch, teaching them how to handle congressional inquiries and hearings. Grassley's office says they were tipped off to this by someone in the Justice Department worried about this new program.

Grassley voiced concern that the new training sessions are "lessons to stiff-arm Congress." He said he drew this conclusion from the "unnecessary hurdles and roadblocks from the department" he encountered in his recent efforts to investigate the FDA, the FBI, and the SEC while chairman of the Senate Finance Committee. Responding to Grassley at the hearing, Attorney General Alberto Gonzales denied there was any "coordinated effort to try to coach them about how to answer questions." Rather, he said, "it's to make sure that we are providing the appropriate level of cooperation, because we do have an obligation -- to try to accommodate competing legitimate interests."

Grassley's exchange with Gonzales occurred during the first Judiciary Committee oversight hearing held by its new Democratic chairman, Patrick Leahy of Vermont. Leahy has expressed concern repeatedly over the years about DOJ's unresponsiveness to his questions. In December, the Justice Department rebuffed a request from him for documents on the detention of suspected terrorists. Leahy, Charles Schumer of New York, and other senators clashed with Gonzales at last month's concerning the DOJ's lack of cooperation with congressional inquiries into DOJ's own controversies, including charges of illegal wiretaps and sending detainees abroad to be tortured. Grassley criticized the DOJ for refusing for years to brief Congress about its investigation into the 2001 anthrax attacks, and accused it of "thumbing the nose at congressional oversight."

But Grassley moved beyond those issues in demanding to know if the Justice Department was also teaching other agencies to be evasive and stymie congressional inquiry through its training sessions. The senator was particularly concerned that some training sessions are being run by the Office of Legislative Affairs, which, he charged, was "the source of unnecessary and inappropriate foot-dragging in many of my oversight efforts over the years."

Before the hearing, Grassley had requested materials the DOJ was using in the training sessions, in order to question Gonzales about them. But the Attorney General claimed he had never received the request. Gonzales promised to find out why the documents weren't delivered. Grassley says he still hasn't received any materials from the DOJ and questions whether Justice is really making a "sincere effort" to respond.

Despite the fact that the Attorney General did not dispute Grassley's premise at the hearing, a Justice Department spokesman denied to the Prospect that the agency even has a "training program" on congressional hearings. But he acknowledged that if other executive agencies ask for it, DOJ does give "confidential advice on congressional oversight."

An activist Democratic Congress may give added back-up to several investigations, launched by both Grassley in the Finance Committee and Arlen Specter in the Judiciary Committee, that have provoked resistance from the DOJ. Grassley has conducted high-profile hearings on the FDA over the past several years, featuring a number of whistleblowers, and previously lambasted the DOJ for attempting to stall or frustrate his investigations of FDA and HHS.

Last summer, the Finance Committee was looking into the role of falsified clinical data in the FDA approval of a drug. After Grassley accused the Justice Department of working with HHS to obstruct that investigation, finance committee staff were blocked from interviewing FDA investigators by the Justice Department. Grassley took the extraordinary step of going directly to FDA offices to speak with FDA personnel, but was still not allowed access to them.

In a December hearing of the Judiciary Committee, just before Congress changed hands, Grassley and the panel's then-chairman, Specter, uncovered further evidence of Justice Department collusion in efforts to thwart congressional inquiry and intimidate whistleblowers. This involved the unheard-of step of subpoenaing confidential discussions between a whistleblower and congressional staff.

That hearing focused on charges, by former Securities and Exchange Commission attorney Gary Aguirre, that an investigation into insider trading by one of the largest hedge funds was squelched by SEC officials. Aguirre had wanted to take testimony from a prominent Wall Street figure, who was also a major fundraiser for President Bush. When he pressed the point, he was not only prevented from doing so -- he was fired.

After Aguirre wrote a letter to SEC Chairman Christopher Cox in September 2005 exposing these events, the Inspector General of the SEC, Walter Stachnik, conducted a cursory investigation into Aguirre's accusations. Without even questioning Aguirre, but only talking to the SEC officials he had accused, the IG dismissed the allegations. Last week, in an interim report on their investigation into the entire matter, Grassley and Specter castigated the IG for a "seriously flawed" investigation.

After the IG's whitewash investigation, Aguirre went to the Senate Judiciary and Finance Committees, which began a serious investigation. Committee staff reviewed thousands of pages of material and questioned numerous witnesses. Under intense congressional scrutiny, the SEC reopened its inquiry into the hedge fund and the Inspector General renewed his review of SEC officials.

But the IG went further, much further, than merely reopening his investigation into SEC actions. He issued a subpoena to Aguirre, which went beyond a request for documents supporting his charges. It included an extraordinary demand, unheard-of by Grassley and his staff, for communication between the whistleblower and Senate investigators.

The Justice Department, acting as the IG's lawyer, attempted to enforce the subpoena. They did that even after Aguirre had provided 250 pages of details supporting his allegations.

Questioned repeatedly by senators at the December Judiciary Committee hearing as to why he needed congressional staff communications, the IG continually hid behind the Justice Department, which he said had advised him not to discuss it. "You may be playing footsy with an executive branch of government that wants to curb congressional inquiries even beyond this one" an exasperated Grassley warned.

Grassley and Specter raised "constitutional objections" to the subpoena with the Justice Department. They saw it as a direct attack on Congress's role as watchdog over the executive. Grassley told the Prospect that "if whistleblowers know that we would give out information that came to us, we're not going to have any whistleblowers come to us anymore. They have to trust us."

And Aguirre says the subpoena also punished whistleblowers -- he says he has "had to spend thousands of dollars on an attorney."

Specter, in releasing the interim report on the SEC investigation, labeled the subpoena a "preposterous" action. He emphasized that Congress has "constitutional oversight responsibilities, and we obviously cannot conduct those responsibilities if the information we glean is going to be subject to somebody else's review," He and Grassley made clear they intend to pursue it further.

The Justice Department and IG now seem to have backed off their demands for staff communications, after it became clear that the Senate's lawyer backed Grassley and Specter, and was ready to go to court. And so that confrontation with the Justice Department has receded. But with Democrats on the Hill launching a myriad of hearings and investigations, things are not likely to stay quiet for long.

Barbara T. Dreyfuss is a Prospect senior correspondent.

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