WASHINGTON -- At a Saturday night party during Washington's bleak holiday season in December 2001, I was a fascinated bystander listening to Michael Chertoff debate a senior Republican congressional staffer. Chertoff, assistant attorney general in charge of the Justice Department's Criminal Division, was arguing on behalf of executive privilege to deny congressional requests for documents concerning outrageous FBI behavior. He did not raise his voice, but his tone was unyielding.
This was not the passive personality of a dignified U.S. Appeals Court judge who was unveiled last week on television as President Bush's surprise second choice for secretary of Homeland Security. Chertoff is billed as a non-controversial nominee, confirmed by the Senate three times and expected to be approved again without trouble. Behind that facade, however, he proved a fearsome adversary during two years running the Criminal Division.
Republican lawyers who soured on Attorney General John Ashcroft the past four years tend to excuse harsh behavior by Chertoff as a loyal lieutenant supporting his chief. Now that he will be in charge of a huge department, the truth will emerge whether his intransigence as a Justice subordinate will characterize him as a Cabinet member.
The serious confrontation between branches of government involving Chertoff began during President Bush's first year in office. Rep. Dan Burton, chairman of the House Government Reform Committee, sought documents exposing the FBI's shocking misuse of mob information in Boston decades earlier. An innocent man went to prison on murder charges because of lies told by a FBI informant. Two of the Bureau's undercover men, including the notorious Whitey Bulger, committed murder without being charged.
Burton was stunned when informed by Ashcroft and White House counsel Alberto Gonzales that the president was invoking executive privilege and such documents never would be released to the public. Chertoff was out front denying material to the committee, but his real role was unclear. Today, supporters say he was merely taking orders from Ashcroft. But three years ago, congressional staffers told me Chertoff was calling the shots -- not just taking them.