by Thomas Nephew
May 17, 2007
As is well known, James Comey gave explosive
testimony (transcript) before the Senate Judiciary Committee yesterday
concerning his standoff with Alberto Gonzales and Andrew Card over the
approval of a secret program.
Here’s a video of some of that testimony.
GONZALES - Pressured Hospitalized Ashcroft to OK Spying
15 May 2007
The encounter had been reported by James Risen and
Eric Lichtblau in January
2006, but Comey’s testimony provides more detail about now-Attorney General
Gonzales and President Bush’s roles.
Glenn Greenwald makes a number of good
observations, as usual, including this one, about Comey and Mueller
preparing for Gonzales/Card arrival at Ashcroft’s bedside by ordering FBI
agents not to allow Comey to be removed from the room
Comey and Mueller were clearly both operating on the premise that Card and
Gonzales were basically thugs. Indeed, Comey said that when Card ordered him
to the White House, Comey refused to meet with Card without a witness being
present, and that Card refused to allow Comey’s summoned witness (Solicitor
General Ted Olson) even to enter Card’s office.
These are the most trusted
intimates of the White House - the ones who are politically sympathetic to
them and know them best - and they prepared for, defended themselves
against, the most extreme acts of corruption and thuggery from the
President’s Chief of Staff and his then-legal counsel (and current Attorney
General of the United States).
* This testimony is on the video at around the 6:30 mark.
Marty Lederman (”Balkinization”) goes further
- “Comey Testifies that the
President Broke the Law.”
Comey testified as follows:
that he, OLC and the AG concluded that the NSA program was not legally
defensible, i.e., that it violated FISA and that the Article II argument OLC
had previously approved was not an adequate justification (a conclusion
prompted by the New AAG, Jack Goldsmith, having undertaken a systematic
review of OLC’s previous legal opinions regarding the Commander in Chief’s
that the White House nevertheless continued with the program anyway,
despite DOJ’s judgment that it was unlawful;
that Comey, Ashcroft, the head of the FBI (Robert Mueller) and several
other DOJ officials therefore threatened to resign;
that the White House accordingly - one day later
- asked DOJ to figure
out a way the program could be changed to bring it into compliance with the
law (presumably on the AUMF authorization theory); and
that OLC thereafter did develop proposed amendments to the program over
the subsequent two or three weeks, which were eventually implemented.
The program continued in the interim, even after DOJ
(Department of Justice) concluded that it was
Lederman repeats the point today:
The President signed the directive himself, and
allowed the NSA program to
continue for at least two weeks, even though DOJ had concluded that it was
legally indefensible, i.e., that it violated a criminal statute.
(All emphases in original.)
At minimum, Gonzales has deserved impeachment
for his untruthful testimony about the US Attorney scandal and his role in
that abuse of power to thwart criminal investigations and intimidate voter
registration campaigns. Comey’s testimony is icing on the cake in that
respect; though I don’t know whether Gonzales’ different office at that time
(counsel to the President) would have some bearing legally, it ought not to
as a matter of his fitness for the office of Attorney General.
But it seems to me Comey’s testimony is a “smoking gun” for impeaching the
President and convicting him of a “high crime and misdemeanor” as well. Now
I’m not the legal expert Lederman is, so when he fails to draw a conclusion
I should be careful to supply one. But as I understand Comey’s testimony,
the President allowed an illegal program to proceed while adjustments were
made to make it legal again.
SPECTER: You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney
general, and that was that. Why consider resigning?
COMEY: Not because of the way I was treated but because I didn’t believe
that as the chief law enforcement officer in the country I could stay when
they had gone ahead and done something that I had said I could find no legal
basis for. [...]
But why resign? You’re standing up to those men. You’re not going to certify
it. You’re the acting attorney general. That’s that.
COMEY: Well, a key fact is that they went ahead and did it without
program was reauthorized without my signature and without the Department of
Justice. And so I believed that I couldn’t stay…
SPECTER: Was the program reauthorized without the requisite certification by
the attorney general or acting attorney general?
SPECTER: So it went forward illegally.
COMEY: Well, that’s a complicated question. It went forward without
certification from the Department of Justice as to its legality.
SPECTER: But the certification by the Department of Justice as to legality
was indispensable as a matter of law for the program to go forward, correct?
COMEY: I believed so.
FEINSTEIN: And what was the elapsed period of time from that meeting, the
denial of DOJ to certify the program and the time when it was essentially
COMEY: It was reauthorized on Thursday, March the 11th, without the
department’s - without my signature, without the department’s approval. And
it was the next day - so less than 24 hours later - that we received the
direction from the president to make it right. And then we set about - I
don’t remember exactly how long it was - over the next few weeks making
changes so that it accorded with our judgment about what could be certified
as to legality. And so it was really only that period from Thursday, when it
was reauthorized, until I got the direction from the president the next day
that it operated outside the Department of Justice’s approval.
FEINSTEIN: For approximately two weeks?
COMEY: I don’t remember exactly. It was two or three weeks I think that it
took us to get the analysis done and make the changes that needed to be made.
Comey’s a careful guy, as is Lederman, and so there may be some loophole
here that I don’t yet understand. But it’s difficult for me to put any other
face on this than that - given what Comey was telling him - the President
was at best criminally negligent in allowing a program to continue for weeks
after learning his acting Attorney General found it had no legal basis.
And at not-too-unlikely worst, of course, Bush was just the top thug
ordering his consigliere thug Gonzales to go to the hospital and squeeze a
go-ahead fig leaf out of an ailing Ashcroft for a program that he already
knew was legally out of bounds.
(All the talk of there not being a statutory
requirement for an Attorney General’s signature can’t get around the great
and unseemly lengths Gonzales and Card - and through them,
George W. Bush
- went to to get one.)
There have been ample grounds to consider impeachment before
approving torture in contradiction to treaty obligations, U.S. law, and
common decency, to approving warrantless surveillance in contradiction to
U.S. law, to presiding over a blatantly fraudulent campaign to convince
Congress and the public of the need to go to war with Iraq, costing tens of
thousands of lives.
Yesterday’s Senate Judiciary Committee hearing adds sworn, smoking gun
testimony about serious, unlawful presidential conduct to that bill of
Impeach President George W. Bush....!
Talking Points Memo reader hits another nail on the head:
“It’s time that the Democrats in Congress blew the lid off
of the NSA’s surveillance program. Whatever form it took for those years was
blatantly illegal; so egregious that by 2004, not even the administration’s
most partisan members could stomach it any longer.
We have a right to know
what went on then.
We publicize the rules under which the government can
obtain physical search warrants, and don’t consider revealing those rules to
endanger security; there’s no reason we can’t do the same for electronic
The late-night drama makes for an interesting news story, but it’s
really beside the point. The punch-line here is that the President of the
United States engaged in a prolonged and willful effort to violate the law,
until senior members of his own administration forced him to stop.
the Congressional investigation that we ought to be having.”