Gonzales and Harman’s ‘Completed Crimes’

Jeff Stein, Spy Talk columnist for Congressional Quarterly, discusses his breaking news story about the alleged NSA wiretap recording of Rep. Jane Harmon agreeing to intervene on behalf of two AIPAC employees accused of espionage in exchange for help getting appointed chair of the House Intelligence Committee and why then-Attorney General Gonzales intervened to close the case before it could really begin.

Interview conducted 4/22/09. Listen to the interview.

Scott Horton: All the news is about Jeff Stein’s report in Congressional Quarterly about a seeming obstruction of justice case involving the former attorney general, Alberto Gonzales, and a congresswoman from here in California named Jane Harman.

Jeff Stein is the national security editor for Congressional Quarterly. The Web site is CQPolitics.com. Welcome to the show, sir. How are you?

Jeff Stein: Thanks alot. It’s nice to be here.

Horton: I guess first of all the ground work here is the Rosen and Weissman case. Can you just briefly describe for the audience what that case is about for the background of what you have reported here?

Stein: These two gentlemen who were lobbyists for the American Israel Public Affairs Committee, which is the most powerful pro-Israel lobby in Washington, stand accused of espionage-related charges. They, according to the charges, they received classified material from a Pentagon employee and supplied it to the Israeli government.

The Pentagon employee is now serving 12 1/2 years in prison. It could have been a lot longer, except he agreed to cooperate with the government on the case. So the trial of the two AIPAC officials now scheduled to begin in June.

Horton: Now this is a very… well, despite the scant media coverage it is a very high profile case. The Pentagon employee…

Stein: Wait a minute, the New York Times lead story today confirms my story.

Horton: Oh, no, I’m sorry. I meant of the Rosen/Weissman case. I’m just trying to get to the political import of that case. Most Americans don’t hear very much about it.

Stein: Yeah, it’s kind of esoteric. It’s a Washington story. It’s about bureaucrats and Pentagon and the spies and influence peddling and all that stuff. It’s gotten a lot of coverage actually but it’s not the kind of thing that generally draws a large public following.

Horton: Right. But it is the kind of thing where apparently, well someone that you describe in your article as a suspected Israeli agent would work hard to make a deal with a congresswoman in order to put pressure on someone, I’m not sure, sir, to reduce the charges against these men.

Tell us about what happened here.

Stein: According to my sources and now according to the New York Times own sources, this unnamed suspected Israeli agent asked Representative Harman if she could lobby the Justice Department, call somebody at the Justice Department, to get the charges against these two officials of AIPAC reduced.

In exchange, the alleged Israeli agent said he would raise money for the top Democrat in the House, who is Nancy Pelosi, and try to get her, out of gratitude, to appoint Jane Harman chairwoman of the House Intelligence Committee when the Democrats took Congress in the next election. That is the allegation.

Horton: And now, it’s a bit unclear, you have the phrase and quotes, in your article: according to the police or national security people who listen to these wire taps or read the transcripts, she “completed a crime.”

She did something, apparently to influence I think in your article you say, it looked like she tried to influence lower level members of the Department of Justice perhaps.

And then as you mentioned the New York Times article on the front page this morning, they seem to indicate that she thought she would have better luck dealing with the White House.

Stein: That’s right.

Horton: Do you have any idea, exactly what or can you flesh these arguments out for us?

Stein: Well, first of all let’s start with this term, “completed crime,” which I had never heard of before until I did this story. And as it was described to me, it’s a term of legal art. What it means is that there is a prima facie case that a crime was committed. This case that she did something in exchange for something.

In other words pay for play, or influence peddling kind of thing. There was a prima facie case. On the face of it it looked like a crime had been committed.

Horton: So it wasn’t just that she had been overheard saying, yeah, maybe we should do this. It’s seems like she actually carried out the conspiracy to do something.

Stein: No, it says that it looks like by just merely promising to do that, merely promising to do that, she had committed a crime, according to the Justice Department attorneys who looked at the tape, listened to the tape. So, that doesn’t mean she did, it means that there is evidence on the face of it that she committed a crime by promising to exchange something for something of value.

In other words to do a favor in exchange for something of value, which is to say to get appointed to be the Chair of House Intelligence Committee. Now, what happened is that that triggered an FBI investigation. But before the investigation was to begin, according to my sources, the attorney general stepped in and stopped the investigation.

So she was never questioned. So what we have here is that we don’t know what really happened, because the FBI investigation was stopped before it began. So we’ll never know.

Ms. Harman may have all sorts of innocent explanations for this conversation, which I believe with 99% certainty did happen the way I described it and the way the New York Times is now describing it, that she did have this conversation.

But there may be a context to it in which puts a less severe spin on what it looks like now and what it looked like to the Justice Department officials when they heard it. So that’s the whole point here, is that justice was not allowed to take its course.

Horton: Well, and I want to get to the Gonzales thing in a second, but in the first place you say in your article it was a National Security Agency investigation, apparently not the same FBI investigation that nabbed Larry Franklin and Rosen and Weissman, and that it was this apparently wasn’t Michael Hayden’s illegal wire tapping program. This actually was sanctioned by the Foreign Intelligence Surveillance Act.

It was an investigation of the suspected Israeli agent, not of the congresswoman. Is that correct?

Horton: That’s right. I’ll correct one thing: I think that this was a continuation of the investigation into a back, the officials of the American Israel Public Affairs Committee.

I think it was at least an outgrowth of that or continuation of that. But yes, it had nothing to do, as far as I know, with the so-called warrantless wire tapping program being conducted by the National Security Agency.

It could very well have been the National Security Agency, because of it’s technological prowess was carrying out this investigation – this eavesdropping operation – for, or in collaboration with, the FBI.

But it was not part of a warrantless program. It was part of a court sanctioned – The Justice department went to this court and asked for an electronic intercept on this target. They got the court’s approval and then the electronic surveillance picked up this conversation with Rep. Harman on it.

Horton: Now as we work our way toward Attorney General Gonzales, and his intervention, we have the question of the notification of the leaders of the House of Representatives due to the separation of powers protocols.

And it’s interesting to me. I don’t think this has made it into much of the reporting so far. Well, Laura Rosen, at Foreign Policy, says that Dennis Hastert would have been notified, as well as Pelosi. I’m not sure if she says [that] she knows he was, or he would have been, according to the protocol.

But he was under investigation, in this same investigation as part of the NSA and the FBI looking into the lobbies and their influence, as David Rose reported in Vanity Fair back in 2005.

Stein: Yes, that was a separate thing, but I don’t know about that.

But I do know that, under the protocol, when a member of Congress is about to be investigated, a national security investigation, the intelligence agencies, the FBI, the CIA, go to the leaders of Congress, the top Democratic Congressperson and the top Republican, and notify them, in confidence, that they’re about to launch this investigation.

The reason for that is, basically, the member of Congress may have access to classified information. They want to tip off these top Congressmen that they don’t want this person to have access to classified information.

But it’s also a way to protect the investigative agencies from running afoul of the Constitution by investigating a member of Congress. That’s a very sensitive area, of course.

But, yes, Denny Hastert, who was then the Speaker of the House, would have been notified, and so would have Nancy Pelosi, who was the Democratic Leader, or Minority Leader at that time, of the House.

Horton: Okay, here’s where we get to Alberto Gonzales. I guess I’m still a bit fuzzy. Is it your understanding that the Department of Justice lawyers were preparing to go ahead and convene a grand jury at this point, before the Attorney General intervened? And then, how did he intervene, exactly?

Stein: No, I didn’t report anything about a grand jury convening. I reported only that lawyers in the public integrity section of the Justice Department, who had reviewed the wiretap intercept, thought there was prima facie evidence here of a crime having been committed. They wanted the FBI to go out and investigate.

It’s after the investigation that you go to a grand jury and get the grand jury to issue an indictment. You can’t have an indictment until this investigation, i.e., until evidence has been gathered.

Horton: I see. So this was killed very early in its crib here – this investigation.

Stein: It never even started, according to my sources.

Horton: This was because, according to your sources, Alberto Gonzales said, “We need Jane.” Why did Alberto Gonzales need Jane?

Stein: Here’s where the story really gets convoluted, more like a movie, a thriller about Washington. About this time that all this happening, the New York Times was preparing a story. It was about to release a story about revealing this whole, vast, warrantless wiretapping program run by the NSA through the telephone companies.

They were listening to virtually all American traffic, email traffic and telephone calls. That was about to be a huge scandal. According to my sources, the Attorney General needed a prominent Democrat on the Hill, who was above reproach, to help defend the administration in a bipartisan way on this warrantless wiretapping program.

So, according to my sources, the Attorney General told the intelligence agencies to stand down, to not go ahead and notify Denny Hastert, the Speaker of the House, and Nancy Pelosi, then the Democratic Leader of the House, to not notify them, because he didn’t want any dirt on Jane Harman to be made public.

He didn’t want an investigation of her ongoing, ironically having been picked up by a wiretap herself allegedly trading favors with a foreign agent. He didn’t want that coming out. At the same time, he needed her to be defending, very publicly and vociferously, the administration’s warrantless wiretapping program.

In fact, she did. She came out very much in support of the administration and denounced the New York Times for revealing the existence of that wiretapping program. So she did do that. Whether she did that as a favor, or whether she felt that anyway, we don’t know.

Again, justice was aborted here. The FBI was not allowed to investigate and thrash this out. This is just an aside from me: The problem for Representative Harman, now, is that she may have done nothing wrong, and yet she’s under a cloud of suspicion because the investigation was aborted.

Horton: As you mentioned on your blog this morning at CQPolitics.com, that Glenn Greenwald pointed out and went back over some of the history on his blog about how she really was the best, from Gonzales’ point of view, in terms of being a loyal Democrat in defending the program after it came out.

Stein: That’s right.

Horton: In fact, I don’t think this made it, by press time of your blog entry, but apparently this blog, PlumLine, this morning is confirming that Harman, in fact, did pressure the New York Times twice, two different times.

And according to Keller’s second statement now, the first time was in late October or early November 2004, just in time to apparently bury the story and help George Bush win reelection over her guy.

Stein: That’s right. So it’s a very convoluted story. In fact, when one of my principal sources was first describing this, including the quote that Jane Harman allegedly said, “This conversation does not exist,” I said, “Oh man, that sounds like a bad, bad movie.”

He said, “It does.” In fact, the whole things sound like a Washington thriller, sort of like that one that just came out now, “State of Play,” or whatever. It’s sort of a thriller, and I’m hoping someone buys the movie rights.


Horton: Or at least pick it up, like the Times has done today, and continue reporting on it.

When does your follow-up article come out?

Stein: My problem is I haven’t written anything yet. I wrote a blog about what had been written for today, as you saw, and you mentioned. I’m continuing to investigate the story. We have not identified with any certainty yet who was the target of the wiretap, who was the suspected Israeli delegate, we haven’t identified that person yet.

That’s just for starters. There are lots of questions to be answered here.

Horton: Indeed. Well, I guess it was the Time story of 2006 that brought up this guy, Haim Saban. Your reporting doesn’t indicate to you that he’s the suspected Israeli agent that we’re talking about here?

Stein: I do not have that. In fact, I was told by one of my sources that he was not the target.

Horton: I see. Do the cops that you talked to, did they think – this maybe is a stretch of a question – but they are under the impression, I guess, that she knew the guy she was making the deal with was actually an agent of Israeli government rather than just an influential lobbyist of some kind?

Stein: That is a really interesting question, which hasn’t been answered yet, and I hope to be able to answer that. Again, if the FBI had been allowed to investigate, we might have found out.

Horton: Have you talked to any lawyers, and are they saying it looks like – I’m no lawyer, that’s The Other Scott Horton who’s got all the credentials – but it seems to me like this is what you call a prima facie for obstruction of justice on the part of the former attorney general, right? And perhaps this congresswoman.

Stein: I’ll let other people characterize it, I am just reporting what happened.

Horton: I see. Alright. That is fair enough. Thank you very much. I really appreciate it.

Stein: Thanks for calling me. I appreciate it.