Posted by Thomas Nephew on May 17th, 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.
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 ordred 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).
Marty Lederman (“Balkinization”) goes further — “Comey Testifies that the President Broke the Law.” Lederman summarizes:
Comey testified as follows:
(i) 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 powers);
(ii) that the White House nevertheless continued with the program anyway, despite DOJ’s judgment that it was unlawful;
(iii) that Comey, Ashcroft, the head of the FBI (Robert Mueller) and several other DOJ officials therefore threatened to resign;
(iv) 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 authorizaton theory); and
(v) 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 concluded that it was unlawful.
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. For instance:
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 — the 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 certified?
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 — from 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 particulars.
Impeach President George W. Bush.
* This testimony is on the video at around the 6:30 mark.
UPDATE, 5/16: A Talking Points Memo reader hits another nail on the head (emphasis added): “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 searches. The late-night drama makes for an interesting news story, but it’s really beside the point. The punchline 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. That’s the Congressional investigation that we ought to be having.”
EDIT, 5/17: video aligned to right side of page.