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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