The frantic race to then-Attorney General John Ashcroft’s bedside on March 10, 2004, sounds more Hollywood than history: Acting AG James Comey’s foot-to-the-floor drive to head off then-White House counsel Alberto Gonzales and Chief of Staff Andrew Card; FBI Director Robert Mueller’s startling imperative to his agents to defy any attempt by Gonzo and Card to throw Comey out; the sedated and badly ailing Ashcroft rousing himself from his sickbed to defend the Constitution; the resignation threats by Comey and Mueller. As Washington lore, the episode joins Richard Nixon’s Saturday Night Massacre and Thaddeus Stevens’s being carried on a stretcher to vote in the impeachment trial of Andrew Johnson. And behind all this, the President pushing a wiretap program so blatantly illegal that his own top Justice appointees were threatening to resign.
The histrionics of that night, recounted by Comey to the Senate Judiciary Committee after three years, further erode Alberto Gonzales’s already fatally compromised capacity to run the Justice Department. And they expose an internal Administration conflict between hyper-politicized operatives like Card, Gonzales and Karl Rove and Justice professionals like Comey–Bush appointees who nonetheless understood that their oath was to the Constitution. But there is also a risk that the drama of this good guys/bad guys confrontation–with Comey protecting his boss the way Michael Corleone took it on the chin for the Don at that lonely, dark hospital in The Godfather–is obscuring the real story: just how many ways the Bush Administration was finding to break the law, and just how high the chain of complicity ran:
§ According to Comey’s testimony, for two years the White House had endorsed still unspecified secret wiretaps by the National Security Agency without a warrant or authorization from the Foreign Intelligence Surveillance Court. In other words, for two years the NSA and telephone companies had been committing a federal crime with the full endorsement of the Oval Office.
§ In spring 2004, when Ashcroft, Comey and every other responsible official in the Justice Department had reviewed the program and declared that the taps blatantly violated the surveillance law, Card, Gonzales and Bush himself all indicated their intention to go forward anyhow. In plain English, that is a conspiracy.
§ If Comey’s memory is accurate, the President himself called the wife of the critically ill Ashcroft and asked her to let Gonzales and Card visit his bedside. When they arrived they tried to persuade the sedated Ashcroft to approve the illegal taps. But Ashcroft had already signed over his AG authority to Comey, who consequently carried the title Acting Attorney General. As Georgetown University law professor Marty Lederman has noted, this means that Bush, Gonzo and Card were seeking the signature of an Ashcroft “who was not only incapacitated but not even acting in an official capacity.” What was the point? Writing in the blog of Yale law professor Jack Balkin, Lederman, a former adviser to the Ashcroft Justice Department’s Office of Legal Counsel, suggests a chilling motive: “Obviously, they did so in order that they could present a
certification, of someone who was not at the time acting as AG, to the NSA and/or to the telecom companies.” That is how determined the President was to continue an illegal program. Add fraud to the charge sheet.