Newsweek reported some time back that Alberto Gonzales had pressured the Justice Department to approve an obviously illegal – indeed, criminal – surveillance program targeting U.S. citizens and had been rebuffed. Today in his testimony before the Senate Judiciary Committee, former Deputy Attorney General James Comey described events that unfolded over a period of forty-eight hours in breathless detail. The transcript is worth studying in some detail, but here’s a teaser:
COMEY: I was headed home at about 8 o’clock that evening, my security detail was driving me. And I remember exactly where I was — on Constitution Avenue — and got a call from Attorney General Ashcroft’s chief of staff telling me that he had gotten a call…and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft. […]
So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and — with whom I’d been discussing this particular matter and had been a great help to me over that week — and told him what was happening. He said, I’ll meet you at the hospital right now.
Told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital.
I got out of the car and ran up — literally ran up the stairs with my security detail.
SCHUMER: What was your concern? You were in obviously a huge hurry.
COMEY: I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to that. . . .
COMEY: I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off. […]
I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room. […]
And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do.
And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn’t matter, because I’m not the attorney general…and he pointed to me, and I was just to his left.
The two men did not acknowledge me. They turned and walked from the room.
Now let’s fast-forward. What was the upshot of all of this? Ashcroft out as attorney general. Comey out as deputy. Jack Goldsmith out as head of the office of legal counsel. Patrick Philbin out of consideration for a senior post. Indeed, it seems a number of careers came to an end that day.
What brought them to an end? Standing up to thuggery. Thuggery that was being perpetrated by a man who now is held out to the world as attorney general of the United States.
This is not just another chapter for the Washington rumor mill. These events were dramatic, and indeed there is an eerie echo of the Watergate-era Saturday night massacre about them. As Marty Lederman points out in a piece of typically superior instant analysis:
Can anyone think of any historical examples where the Department of Justice told the White House that a course of conduct would be unlawful (in this case, a felony), and the President went ahead and did it anyway, without overruling DOJ’s legal conclusion?
In my seminar at Columbia, I frequently use the example of the ship sales that Roosevelt ordered to Britain, which violated the Neutrality Act. It presents the classic case of legal formalism being overridden by urgent national security necessity. But compare how Roosevelt moved with the way Bush and Gonzales have handled this matter. Roosevelt is completely above-board: he announces what he is doing publicly, in fact with a radio address to the nation; and he secured an opinion from his Attorney General that backs him (Robert H. Jackson authored a fascinating note on this topic.) By contrast, Bush and Gonzales behave in roughly the same manner as the character Arturo Ui in Bertolt Brecht’s play of that name – a Chicago area street tough who bullies his way through to the top. The distinction couldn’t be sharper or more unsettling.
As a postscript, I have been a critic of Attorney General Ashcroft for some time. But I never doubted that he was a person of integrity. This account showed it. It also shows that there was a systematic effort to review the ranks of political appointees within the Justice Department and to remove all who exercised independent thought. If you’re not concerned about this, consider yourself a sleepwalker.