Comey's Dissent at Justice

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On Tuesday, former deputy Attorney General James B. Comey testified in a Senate hearing on the US Attorneys investigation. What unravelled was a made-for-TV drama, a whole new episode in the Bush-Cheney push for presidential power. (If the writers of 24 don’t steal from Comey’s testimony, they’re crazy. Actually, they’ve already done critical decision making in the ICU.)

Here’s how the teleplay might look:


In the spring of 2004, “solid Republican” Comey and his boss John Ashcroft decide, based on the opinion of the DoJ’s Office of Legal Counsel, that the NSA’s warrantless surveillance program is illegal. When it comes time to sign a presidential order to reauthorize the program, John Ashcroft is in the hospital for emergency gall bladder surgery. The White House pressures Comey, who is acting Attorney General, to sign the order, but he refuses.

Act I

The action begins when Alberto Gonzales (then White House counsel) and Andrew Card (President Bush’s Chief of Staff) try to give Comey the run-around by appealing to the semi-conscious Ashcroft at his hospital bedside. When Comey learns they’re heading to the hospital, he races there with lights and sirens and sprints up the stairs to reach Ashcroft before Gonzales and Card arrive. He also pulls in FBI Director Robert Mueller to make sure Bush’s men can’t evict him from Ashcroft’s room. Ashcroft gathers his strength and refuses to approve the order.

Act II

Andrew Card summons Comey to the White House. Comey insists that Ted Olson, the US solicitor general, accompany him as a witness. It becomes clear in the meeting that Bush and Cheney want the NSA program to continue; and that Comey, Ashcroft, and Mueller are threatening to resign. The following day, Comey and Mueller each meet privately with Bush at the White House, and Bush agrees to the changes the DoJ wants to make to the surveillance program.


The deadline for reauthorization expires. President Bush allows the original NSA program to continue for the two to three weeks it takes the DoJ to work out the details of the necessary changes. The cleaned-up program — which only becomes public in December 2005 — is approved by DoJ. No one resigns.

There are so many questions here. One thing that struck us was the surprisingly heated dissent within a Justice Department that we’d naively assumed was loyal to the Bush administration. But despite the impressive resignation threats, are there really any heroes here? In the end, didn’t Comey, Ashcroft, and Mueller still sign off on a domestic surveillance program whose legality is hugely debated? What does it take — and symbolize — to resign in protest? Why did the DoJ, after the NSA program was already over two years old, suddenly decide it was illegal? Did President Bush violate any laws by allowing the program to continue for a couple of weeks without reauthorization? Isn’t it troubling that Gonzales and Card were trying to wrangle a signature from a very sick man? How big a drop is this story in the bucket of problems for George W. Bush and Alberto Gonzales? And how many other drops might be squeezed out of the US Attorneys investigation?

Glenn Greenwald

Constitutional lawyer

Blogger, Glenn Greenwald

Author, How Would a Patriot Act?

Laurence Tribe

Professor of constitutional law, Harvard Law School

Bruce Fein

Principal, The Lichfield Group

Associate Deputy Attorney General during the Reagan administration

Extra Credit Reading

James B. Comey testifies

David Johnston, Bush Intervened in Dispute Over N.S.A. Eavesdropping, The New York Times, May 16, 2007: “Mr. Comey said he phoned Mr. Mueller, who agreed to meet him at the hospital. Once there, Mr. Comey said he ‘literally ran up the stairs.’ At his request, Mr. Mueller ordered the F.B.I. agents on Mr. Ashcroft’s security detail not to evict Mr. Comey from the room if Mr. Gonzales and Mr. Card objected to his presence.”

Glenn Greenwald, What will be done about James Comey’s revelations?,, May 17, 2007: “James Comey’s testimony amounts to a statement that — even according to the administration’s own loyal DOJ officials — the President ordered still-unknown spying on Americans, and engaged in that spying for a full two-and-a-half-years, that was so blatantly and shockingly illegal that they were all ready to resign over it”

Marty Lederman, Can You Even Imagine How Bad it Must Have Been?, Balkinization, May 16, 2007: “In light of all these considerations, just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It’s staggering, really — almost unimaginable that anything such as this could have happened, especially where the stakes were so high.”

Ed Brayton, Comey, Ashcroft and the NSA Wiretapping Program, Todays events and thoughts, May 17, 2007: “There are two appalling parts to this story. The first is the incredibly callous behavior of Card and Gonzales, going to the hospital to get Ashcroft to sign off on a program they had already determined was not operating legally. The second is the White House reauthorizing the program that their own DOJ said was not legal.”

Jamie, “So are they all, all honorable men–“, Blue Wheelbarrow, May 17, 2007: “James B. Comey, loyal Republican, loyal to President Bush, shows what a man of honor looks like amongst the toadies of the Bush administration. He has been loyal, I would say to a fault, but when it comes to basic human decency and a commitment to honor his oath to uphold the Constitution and the Republic, he has been steadfast.”

mogrify, A Godfather Moment, Blogrify, May 17, 2007: “I couldn’t help but notice the similarity here to the hospital scene in the The Godfather, where the ailing Vito Corleone’s police guard has disappeared and Michael and Enzo stare down the hit squad sent by Sollozzo and Captain McCluskey. It’s unnerving. I can almost imagine the film noir shadows, the darkened street, the trembling hand reaching for the jacket pocket…”

thegreyeminence, commenting on Kevin Pease’s Livejournal, May 17, 2007: “When the last bastion of liberty and the rule of law is John Ashcroft, the situation has left insanity far behind and started breaking new trails into parody. What do these guys do for an encore, tie Nell to a railroad track?”

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  • W.M. Palmer

    Philip Heymann, of HLS, DAG under Reno, would make an excellent guest on this topic. Also, you could seek to get Eric Holder, former DAG at the end of Clinton’s era – now a partner at Covington, in DC – to offer his take on the matter (though his current orientation – serving the private sector – and likely interest in returning to DOJ might make him less open to providing public commentary).

    One minor line to consider: it appears that Card, in summoning Comey to the WH, lied about the reason the WH officials went to visit Ashcroft – was that itself a federal crime (false statement to a government official in his official capacity regarding a federal matter) . . .. Seems arguably so to me (a former member of the Public Integrity Section of DOJ).

  • hurley

    W.M. Palmer says:

    “One minor line to consider: it appears that Card, in summoning Comey to the WH, lied about the reason the WH officials went to visit Ashcroft – was that itself a federal crime (false statement to a government official in his official capacity regarding a federal matter) . . .. Seems arguably so to me (a former member of the Public Integrity Section of DOJ).”

    Hardly a minor line, no? Why not invite W.H. Palmer on to explore the issue, determine as best as possible whether this particular crime was committed?

  • Potter

    So the question is who send Card and Gonzales to the semi-conscious Ashcroft?

    Why has this taken so long to come out? Oh yes- we have some accountability now in the Congress and it’s under oath.

    ( Ashcroft went up one notch imo for knowing where the line is… Mueller too.)

  • Sutter

    I don’t get this. Newsweek had this story — both the “Comey dissent” angle and the “Ashcroft on his hospital bed” angle — over 15 months ago. See What’s new, other than the testimony?

  • Potter

    Good for Newsweek and thanks Sutter. From the article:

    The angry reaction bubbled up all the way to the Oval Office. President Bush, with his penchant for put-down nicknames, had begun referring to Comey as “Cuomey” or “Cuomo,” apparently after former New York governor Mario Cuomo, who was notorious for his Hamlet-like indecision over whether to seek the Democratic presidential nomination in the 1980s. A high-level delegation—White House Counsel Gonzales and chief of staff Andy Card—visited Ashcroft in the hospital to appeal Comey’s refusal. In pain and on medication, Ashcroft stood by his No. 2.

  • Nick

    Sooo… We’re informed by sources as diverse as Mennonites and Palestinians that W says that God speaks to him.

    Why didn’t God tell Comey to sign the damned thing?

  • Yeah, and where the hell was Al Haig?

  • RobertPeel

    Is this “Profiles in Courage?”

  • Potter

    Gonzales is a gangster- and it IS a sad day………

    I will forever mourns that Laurence Tribe is not on the Supreme Court.

    And what a lineup tonight!–thank you! Keep us sane please ( at least).

  • enhabit

    the revolution will not be televised!

  • enhabit

    who is ACTUALLY behind this?

  • enhabit

    who gains from this long term?

  • Wasn’t the congress itself complicit in the plot to commit these high crimes and misdemeanors? They had the power to evaluate the program themselves and almost certainly knew about the proceedings. Are there a few senators and reps who might be sweating this out too?

  • skoper

    Why are you wasting the airtime? Lawrence Tribe said “thank goodness there’s only 615 days left.” Why are there ANY days left? Why is Bush and his gang of criminals still there? Does no one have any guts in the Republican party? Republicans and Democrats stood tall when it was time to send Nixon away. Somehow a second rate burglary has more threat than trashing the constitution he swore to “preserve, protect, and defend.

    Pelosi for President in 07!

  • vigneron

    I listened to Mr. McKay and Mr. Iglesias on KUOW ‘Weekday’ several weeks ago. They mentioned that circumstantial evidence is sometimes enough to convict when no other explainations fit the model. Ochham’s Razor.

    It would seem that W may have a great many pardons at the end of his term.

  • How do we get Larry Tribe nominated for Special Prosecutor?

  • enhabit

    hang on to the republic this time please! my american ancestors did not sign on to following emperors!

  • Potter

    That was close to the show on impeachment that we have been asking for. Chris ended with “let’s stay on the case”. Okay.

    The guests were great…. all of them. Again thank you for Laurence Tribe, a personal favorite ( should be on the Supreme Court – or did I say that already?).

    We have Glenn Greenwald’s book ” How would a Patriot Act?”

    Bruce Fein- terrific.

    (I think I lked this show.)

  • orlox


  • chasbow

    The guests kept alluding to the courage shown by the DOJ officials who threatened to resign in the face of the ongoing constitutional violations. My problem with that tack is why weren’t these courageous individuals willing to come forward and be whistle-blowers? That is what we need.

    My pet theory as to why so many incongruous behaviors are displayed by people in this administration, as well as Kerry conceding Ohio to easily, and Tony Blair riding the Bush Bus into oblivion is that these criminals (Cheney, Rove, Bush and Rumsfeld) either black-mail the opposition with what they know or what they will do to any who oppose them. Likely we will never know because the Dems are to scared and the Republicans fear the backlash within their own party.

    Whatever happened to Jeff Gannon?

    Why haven’t Rove and Cheney been tried for Treason for outing Valerie Plame? It was treason because they compromised any other field agents, operatives, or operations which Valerie Plame had ever been a part of or had contact with.

    Would someone please come forward and start blowing the whistle.

  • harriet

    Is justicre stalled because any case will end before a Supreme Court even more loyal to W than the 2000 Court whuch selected him. How long, then, will our Country and Constitution be hobbled by those partisans?

  • hurley

    At the risk of boring even myself, the Comey affair and impeachment:

  • hurley

    Haven’t heard the show yet — why, out of curiousity, the delay with he podcasts? — but thought Katherine’s write-up terrific.

  • Potter

    Yeah why the delay? This one’s a keeper. I think they were out celebrating last night 🙂

  • Katherine

    Sorry about the late podcast — my fault! David generally creates it but asked me to do it last night…and I simply forgot.

  • hurley

    Laus Deo, the dread word finally been uttered on ROS airtime.

  • hurley

    has finally, etc

    Time to prosecute the troll.

  • scando

    thanks very much for this program. i was particularly impressed by the forcefulness and clarity of mr. fein’s comments. i would urge you to please keep pushing this subject, if for no other reason than that comey’s testimony seems to me to be nothing short of clear evidence of the whitehouse (bush&cheney) actively pursuing flagrantly illegal activity and as such is evidence of what are equally clearly impeachable offenses………i find it hard to believe that even bush/cheney/rove/gonzales would be able to withstand the tidal wave of journalistic response that this story merits.

  • tbrucia

    I wonder why I seem all worn out by all the constant drama. It reminds me of being sick with a bad case of flu. I just keep thinking, ‘One more day; one more day. If I don’t feel any worse, every day is just one more day to getting well.’ And then I think, ‘What if — instead of flu — I were to discover I had terminal cancer? What would I say to myself?’ Much of the depressing stuff coming out of Washington makes me wonder, ‘Does America just have a case of the flu, or is the nation in the early stages of terminal cancer?’ Hanging in time, not having confidence that the end of the current Administration will lead to ‘better times’ is painful. It’s frightening to think that the bad times we are suffering may just be a prelude to worse times. It’s no wonder that people turn off from politics. It’s simply so depressing that they turn to raising flowers, or playing with their grandkids, or going out to dinner with friends — trying to pretend they live in a caring, fair, just nation ruled by ‘good folks’ despite all the evidence to the contrary.

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