This column was written by Benjamin Wittes.
The scene former Deputy Attorney General James Comey described to the Senate Judiciary Committee on Tuesday was the stuff of Hollywood movies: a frantic race between White House and Justice Department officials to the hospital room of John Ashcroft; a dramatic showdown at the gravely ill man's bedside, in which the White House tried to get him to overrule Comey's decision not to reauthorize the National Security Agency's (NSA) domestic surveillance program. But while the basic contours of this encounter have been public for some time, the full story, as Comey told it as part of the committee's investigation into the federal prosecutor firings, gives the picture a more sinister sheen. What he described, very simply, was a White House bent on defying the law as the Justice Department understood it. It is, in a city that likes to imagine itself beyond shock, a genuinely shocking story.
Until it was brought under the Foreign Intelligence Surveillance Court earlier this year, the NSA's warrantless wiretapping program, under President Bush's order, required reauthorization by the president every 45 days. That reauthorization, in turn, required a certification by the attorney general that the program was lawful. Early in 2004, the Office of Legal Counsel (OLC) — under the new leadership of then-Assistant Attorney General Jack Goldsmith — developed anxieties about the program and determined that "they could not find an adequate legal basis" for it, Comey testified. In response, Comey and Ashcroft discussed the matter, and they too developed "concerns as to our ability to certify [the program's] legality." (Comey did not confirm he was talking about the NSA's program, but he clearly was.) Hours later, Ashcroft became critically ill with pancreatitis and was rushed to the hospital, and Comey became acting attorney general. In the days leading up to the March 11 deadline, he informed the White House that he would not reauthorize the program.
The night of March 10, Ashcroft's wife called the attorney general's chief of staff, David Ayers, from her husband's hospital room to say that she had received a call from the White House and that Alberto Gonzales, then the White House counsel, and White House Chief of Staff Andy Card were on their way there. Comey rushed over, as did Goldsmith and another department official, Patrick Philbin; he called in FBI Director Robert Mueller as well, though Mueller arrived only after the subsequent confrontation had taken place. In the hospital room, Card and Gonzales sought to persuade a barely conscious Ashcroft to sign the authorization, though the powers of the attorney general resided with Comey, not him. Ashcroft, Comey testified, "lifted his head off the pillow and in very strong terms expressed his view of the matter," standing by the department's position, and then said, "But that doesn't matter, because I'm not the attorney general. There is the attorney general." And he pointed at Comey.
Over the next few days, Comey testified, "The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality." Comey prepared to resign, as did Mueller and a bevy of other senior department officials. "Mr. Ashcroft's chief of staff asked me . . . not [to] resign until Mr. Ashcroft was well enough to resign with me," he informed the committee. Only after personal meetings between President Bush and both Comey and Mueller was the crisis averted. In a conversation with the FBI director, Comey related, Bush instructed them to "do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality." These changes were implemented over the succeeding weeks, and the resignations were shelved.
At least as Comey relates it, this affair is not one of mere bad judgment or over-aggressiveness. It is a story of profound misconduct on Gonzales's part that, at least in my judgment, borders on the impeachable. Put bluntly, faced with a Justice Department determination that the NSA's program contained prohibitive legal problems, the White House decided to go ahead with it anyway. In pursuit of this goal, Gonzales did two things that both seem unforgivable: He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man and to use those powers to approve a program the department deemed unlawful. Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But it constitutes a profound affront to the institutional role of the Justice Department as it has developed. The Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law.
The much-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary. Few attorneys general get tested as Ashcroft did that night in 2004. One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law. More broadly, the Justice Department seems to have performed admirably across the board — from the OLC having taken its job seriously, to the willingness on the part of the department brass and Mueller to lose their jobs to defend the department's ability to determine the law for the executive branch. Had the story ended with Comey's victory, it would have been an ugly crisis with a happy ending.
But it didn't end there. Less than a year later, Gonzales replaced Ashcroft as Comey's boss. Within a year of that, none of the four people who had stood up to Gonzales in that hospital room remained in government. Goldsmith was already gone. Comey stayed on for a few months and then joined the private sector. He testified that Philbin, who returned to private practice in 2005, was "blocked from a promotion, I believed, as a result of this particular matter." In the long run, in other words, the bad guys won. The ranks of people willing to say no to the White House thinned. And without that strong cadre in the political echelons, the department has suffered terribly. That is what's behind the U.S. attorney scandal and the horrid allegations that career appointees were subjected to political litmus tests.
There is no way to resolve this problem as long as the man at the Justice Department's helm is the sort of person who can lean on a hospitalized colleague to usurp the power to authorize something that the department has determined to be unlawful. I first met Gonzales when he came to town in 2001, and our paths have crossed periodically since. I have always found him affable, friendly, and gracious. While I never saw much to admire in his work, I never imagined him capable of behavior so wholly dishonorable as what Comey described on Tuesday. In fairness to him, he should have the chance to tell his side of the story. But if he cannot materially challenge Comey's account, he must be removed from office immediately.
Bush's own role in this episode bears examination, too. On the one hand, the president was the figure who finally permitted Comey do the right thing. On the other hand, Comey seemed to believe — but was not sure — that it was Bush himself who called Mrs. Ashcroft in the hospital room and told her Card and Gonzales would be coming over. Was Gonzales there at the president's personal direction? And what would it say about the president if he not only put Gonzales in charge of Justice after seeing such behavior but directed the behavior itself? At a bare minimum, it would suggest that the department requires aggressive congressional protection from a man who disrespects its function and sees it merely as an instrument of his own power.
By Benjamin Wittes
If you like this article, go to www.tnr.com, which breaks down today's top stories and offers nearly 100 years of news, opinion and analysis