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.
The latter view seemed confirmed as I listened to Chertoff at that 2001 Christmas party. He was inflexible about executive privilege, arguing that there never was any need for the executive branch to grant demands for documents from the legislative branch. It was a maximalist position for executive power. Thanks to Chairman Burton's persistence, however, the FBI material eventually was turned over to the committee. But no financial compensation has been granted to the families of victims of the FBI killings.
In Chertoff's remaining year at the Justice Department, he frequently was the man who said no -- rejecting requests for documents. By the spring of 2002, it was clear that Bush's Justice Department was not going to investigate the Clinton administration's use of Internal Revenue Service scrutiny on critics of Bill Clinton. The watchdog organization Judicial Watch provided substantial evidence of IRS harassment, but Chertoff denied that any pattern had been established.
By the time Bush nominated Chertoff to the 3rd Circuit Court of Appeals two years ago, Judicial Watch was loaded and ready. It raised the old question of misusing FBI resources -- claiming an extended pattern when Chertoff was U.S. attorney for New Jersey (1990-94).
Chertoff had been well regarded on both sides of the aisle as Sen. Alfonse D'Amato's chief counsel in the Whitewater investigation and enjoyed soft confirmation treatment. Three days after receiving Judicial Watch's mass of purported evidence, the Judiciary Committee quickly voted to confirm Chertoff (with Democratic senators abstaining). The committee's inquiry consisted of asking Chertoff about the charges, and he said they were not true.
There are no signs of a serious effort to block Chertoff's confirmation for the Cabinet or even slow it down. But the process can provide insight into a high government official's outlook, and difficult questions might well be asked in the case of Michael Chertoff. Does he still believe in unlimited privilege to withhold from Congress even information of criminal activity in the executive branch? Why did he block investigation of IRS harassment? Is there any validity to charges that he misused FBI mob resources in New Jersey?