Alberto Gonzales browbeats the critically ill.

The law, lawyers, and the court.
May 15 2007 6:28 PM

Pulling the Plug

Alberto Gonzales browbeats the critically ill.

James Comey. Click image to expand.
James Comey

It's hard to take any pleasure from the depiction of government officials in critical condition being manipulated in their hospital beds by soulless White House flunkies. But Senate Democrats are all smiles as former Deputy Attorney General James Comey goes before the Senate judiciary committee this morning. Chuck Schumer, D-N.Y., can barely stop grinning long enough to ask his next question. Because Alberto Gonzales truly is the gift that keeps on giving. Only a handful of reporters are on hand, at what should have been a rerun of Comey's devastating House testimony two weeks ago. But we are treated to Grey's Anatomy meets The West Wing.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

And maybe that's why the Democrats finally have reason to grin. They have failed so far to take down Attorney General Alberto Gonzales with tales of the man's hackery, sycophancy, and boundless apathy. But now we're being treated to a graphic retelling of the AG's efforts to browbeat a critically ill man into signing off on the National Security Agency's illegal surveillance program.

Wait. Now even I'm grinning.

Comey is, as ever, calm and honest and balanced. He starts this morning's testimony with the caveat that he will say absolutely nothing about the "classified program" at issue back in March of 2004. He won't even name it. Luckily the New York Times has already done so. We're talking about the NSA's "terrorist surveillance" program, which was secretly authorized by the president after 9/11 and not revealed to the public until 2005. This NSA program required reauthorization every 45 days. It was due for such a reauthorization in spring of 2004, back when John Ashcroft was the attorney general and Comey his deputy (a time that now seems like the Golden Age of freedom and transparency in the law).

Comey prefaces his story by explaining his "hesitation" about telling it. "I have thought a lot over the last three years how I would testify if I were ever asked about this," he says. Then he explains that by spring 2004, the Justice Department's Office of Legal Counsel had conducted an "intensive re-evaluation" of the NSA surveillance program and had determined that DoJ "did not have the ability to certify its legality." Ashcroft and Comey agreed with this assessment that the program as it existed was illegal. Immediately after discussing this with Comey, Ashcroft went into the ICU at George Washington Hospital with acute pancreatitis, and Comey became acting attorney general. We knew the bare outlines of this story already. But oh my goodness, it's a whomping good yarn when it comes from the guy in the armchair next to the hospital bed.

Says Comey today: "Over that week I communicated that as acting attorney general that I would not certify [the program's] legality. The next day, on Wednesday, March 10, 2004, I was headed home. My security detail was driving me." Comey got a call from Ashcroft's chief of staff, who said that although Mrs. Ashcroft had "banned all visitors" from her husband's room in the ICU, where he was in his sixth day, a call had just come to his hospital room indicating that Gonzales, then White House counsel, and Andy Card, then Bush's chief of staff, were on their way. (Comey seemed to recall that the call to Ashcroft came from the president; he says it certainly came from the White House.)

Comey made frantic calls to his own chief of staff and to Robert Mueller, then FBI director, while he raced to the hospital, sirens blasting. He sprinted up the stairs of the hospital to get to Ashcroft's room before Gonzales and Card did.

"I was concerned about how ill he was," Comey explains, afraid "that they were trying to overrule me." He paints a picture of "a darkened room, and Mrs. Ashcroft standing beside the bed." Comey says he "tried to orient" Ashcroft, but that it "wasn't clear I'd succeeded." Comey, a la Harrison Ford, then dialed up Mueller on the phone to make sure he wouldn't be removed from the room. "I sat in an armchair by his bed, and Mrs. Ashcroft stood by the bed holding his arm," he recounts. His bullpen, in case he needed help, included Jack Goldsmith, an assistant attorney general, and Patrick Philbin, an associate deputy attorney general. In the musical version, everyone would be snapping their fingers.

"Within minutes," Gonzales and Card came barreling in, carrying an envelope. Inside was the reauthorization for the surveillance program, which they wanted Ashcroft to sign. Ashcroft raised his wan head from the pillow and clearly said he wouldn't, adding, "I am not the attorney general. That's the attorney general." He pointed to Comey.

Gonzales and Card left. Comey got an urgent call from a "very upset" Card, demanding an immediate meeting at the White House. Comey said he was so upset by what he'd just seen that he wouldn't meet with Card without a witness. He wanted Ted Olson, then solicitor general. (I know, I know, it's like a Brat Pack movie about the DoJ). Card said he didn't know what Comey was so steamed about. He and Gonzales had just "been there to wish [Ashcroft] well."

Comey disagreed. "I had witnessed an effort to take advantage of a very sick man," he testifies.

Later that night, Card refused to let Olson into his White House office when he and Comey discussed the program again. The next day, March 11, the program was "reauthorized without certification by the Department of Justice," Comey said, and "I prepared a letter intending to resign." It was the morning of the Madrid train bombing; but still, "I couldn't stay if the White House was engaging in conduct that had no legal basis."

Comey testifies that there was something of a line to resign that day: Mueller; then Comey's chief of staff; and then Ashcroft's chief of staff—who asked only that Comey wait until "Ashcroft was well enough to resign with me." 

Next day, crisis averted. Comey and Mueller each met one-on-one with the president and persuaded him to "do the right thing, and put the program on a footing that we could certify its legality," Comey says. We don't learn exactly how long the program went on operating illegally while the Justice Department made its fixes, but it was around three weeks. We really know only that the president was quite willing to forge ahead with an illegal program.

Sen. Arlen Specter, R-Pa., is so aggrieved by Comey's revelations that he looks like he might cry. He frets that Schumer took too much time questioning the witness and then grouses that his Republican colleagues haven't shown up, leaving him alone (and "lonely") with seven (grinning) Democrats.

Specter does get Comey to admit that the president ultimately did the right thing by modifying the program. Also that nobody overtly threatened Comey. Or maimed him. But Comey gets one more chance to launch his main zinger: "They went ahead and reauthorized the program without my signature." And that's about all he needs to say. The White House went ahead and reauthorized a controversial, presidential-power-grabbing program deemed illegal by the Justice Department, after trying to extract permission from a critically sick John Ashcroft who didn't quite know what day it was.

Today's revelations shouldn't be much of a surprise. Gonzales had nothing but contempt for the Justice Department back when he worked for the president, and he has nothing but contempt for the Justice Department now that he, well, still works for the president. Nevertheless, if this whole sordid U.S. attorney scandal wanted for a metaphor, it need search no longer. Here's the Rule of Law lying in critical condition in its hospital bed, while the man now charged with its stewardship runs roughshod  over it, all in the name of expanding presidential power.

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