Comey Testifies that the President Broke the Law

Marty Lederman

Former Deputy Attorney General James Comey just completed his testimony before the Senate Judiciary Committee. Much of the testimony concerned the inicident on March 11, 2004, when Comey, AG Ashcroft and AAG Jack Goldsmith (OLC) refused to sign off on the legality of the NSA "terrorist surveillance" program.

Unfortunately, I missed the first half of the testimony. CSPAN did not cover it, and I'm told that committee webcasts are not recorded! (which seems remarkably short-sighted). But Paul Kiel's very helpful summary is here, and I now have a transcript of the testimony. READ IT. It's just about the most dramatic testimony I can recall in a congressional committee since John Dean.

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.

Note that Comey homself was the Acting AG at the time, with Ashcroft being in the hospital for surgery. As the New York Times previously reported, and as Comey recounted today in remarkably dramatic detail -- set out below -- the White House (Andy Card and Judge Gonzales) actually attempted to have Ashcroft overrule Comey even though Ashcroft was ailing and not wielding the powers of the AG at the time. According to Comey today: "I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general."

Most importantly: Can anyone think of any historical examples where the Department of Justice told the White House that a course of conduct would be unlawful (in this case, a felony), and the President went ahead and did it anyway, without overruling DOJ's legal conclusion?

Excerpt from Comey testimony:

COMEY: In the early part of 2004, the Department of Justice was
engaged -- the Office of Legal Counsel, under my supervision -- in a
reevaluation both factually and legally of a particular classified
program. And it was a program that was renewed on a regular basis,
and required signature by the attorney general certifying to its
legality.

And the -- and I remember the precise date. The program had to
be renewed by March the 11th, which was a Thursday, of 2004. And we
were engaged in a very intensive reevaluation of the matter.

And a week before that March 11th deadline, I had a private
meeting with the attorney general for an hour, just the two of us, and
I laid out for him what we had learned and what our analysis was in
this particular matter.

And at the end of that hour-long private session, he and I agreed
on a course of action. And within hours he was stricken and taken
very, very ill...

SCHUMER: (inaudible) You thought something was wrong with how it
was being operated or administered or overseen.

COMEY: We had -- yes. We had concerns as to our ability to
certify its legality, which was our obligation for the program to be
renewed.

The attorney general was taken that very afternoon to George
Washington Hospital, where he went into intensive care and remained
there for over a week. And I became the acting attorney general.

And over the next week -- particularly the following week, on
Tuesday -- we communicated to the relevant parties at the White House
and elsewhere our decision that as acting attorney general I would not
certify the program as to its legality and explained our reasoning in
detail, which I will not go into here. Nor am I confirming it's any
particular program.

That was Tuesday that we communicated that.

COMEY: The next day was Wednesday, March the 10th, the night of
the hospital incident. And I was headed home at about 8 o'clock that
evening, my security detail was driving me. And I remember exactly
where I was -- on Constitution Avenue -- and got a call from Attorney
General Ashcroft's chief of staff telling me that he had gotten a
call...

SCHUMER: What's his name?

COMEY: David Ayers.

That he had gotten a call from Mrs. Ashcroft from the hospital.
She had banned all visitors and all phone calls. So I hadn't seen him
or talked to him because he was very ill.

And Mrs. Ashcroft reported that a call had come through, and that
as a result of that call Mr. Card and Mr. Gonzales were on their way
to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the
president himself, but I don't know that for sure. It came from the
White House. And it came through and the call was taken in the
hospital.

So I hung up the phone, immediately called my chief of staff,
told him to get as many of my people as possible to the hospital
immediately. I hung up, called Director Mueller and -- with whom I'd
been discussing this particular matter and had been a great help to me
over that week -- and told him what was happening. He said, "I'll
meet you at the hospital right now."

Told my security detail that I needed to get to George Washington
Hospital immediately. They turned on the emergency equipment and
drove very quickly to the hospital.

I got out of the car and ran up -- literally ran up the stairs
with my security detail.

SCHUMER: What was your concern? You were in obviously a huge
hurry.

COMEY: I was concerned that, given how ill I knew the attorney
general was, that there might be an effort to ask him to overrule me
when he was in no condition to do that.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly.

And so I raced to the hospital room, entered. And Mrs. Ashcroft
was standing by the hospital bed, Mr. Ashcroft was lying down in the
bed, the room was darkened. And I immediately began speaking to him,
trying to orient him as to time and place, and try to see if he could
focus on what was happening, and it wasn't clear to me that he could.
He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and the
attorney general and maybe medical personnel in the room. No other
Justice Department or government officials.

COMEY: Just the three of us at that point.

I tried to see if I could help him get oriented. As I said, it
wasn't clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone.
He was on his way. I handed the phone to the head of the security
detail and Director Mueller instructed the FBI agents present not to
allow me to be removed from the room under any circumstances. And I
went back in the room.

I was shortly joined by the head of the Office of Legal Counsel
assistant attorney general, Jack Goldsmith, and a senior staffer of
mine who had worked on this matter, an associate deputy attorney
general.

So the three of us Justice Department people went in the room. I
sat down...

SCHUMER: Just give us the names of the two other people.

COMEY: Jack Goldsmith, who was the assistant attorney general,
and Patrick Philbin, who was associate deputy attorney general.

I sat down in an armchair by the head of the attorney general's
bed. The two other Justice Department people stood behind me. And
Mrs. Ashcroft stood by the bed holding her husband's arm. And we
waited.

And it was only a matter of minutes that the door opened and in
walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came
over and stood by the bed. They greeted the attorney general very
briefly. And then Mr. Gonzales began to discuss why they were there
-- to seek his approval for a matter, and explained what the matter
was -- which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his
head off the pillow and in very strong terms expressed his view of the
matter, rich in both substance and fact, which stunned me -- drawn
from the hour-long meeting we'd had a week earlier -- and in very
strong terms expressed himself, and then laid his head back down on
the pillow, seemed spent, and said to them, "But that doesn't matter,
because I'm not the attorney general."

SCHUMER: But he expressed his reluctance or he would not sign
the statement that they -- give the authorization that they had asked,
is that right?

COMEY: Yes.

And as he laid back down, he said, "But that doesn't matter,
because I'm not the attorney general. There is the attorney general,"
and he pointed to me, and I was just to his left.

The two men did not acknowledge me. They turned and walked from
the room. And within just a few moments after that, Director Mueller
arrived. I told him quickly what had happened. He had a brief -- a
memorable brief exchange with the attorney general and then we went
outside in the hallway.

SCHUMER: OK.

Now, just a few more points on that meeting.

First, am I correct that it was Mr. Gonzales who did just about
all of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK.

And they made it clear that there was in this envelope an
authorization that they hoped Mr. Ashcroft -- Attorney General
Ashcroft would sign.

COMEY: In substance. I don't know exactly the words, but it was
clear that's what the envelope was.

SCHUMER: And the attorney general was -- what was his condition?
I mean, he had -- as I understand it, he had pancreatitis. He was
very, very ill; in critical condition, in fact.

COMEY: He was very ill. I don't know how the doctors graded his
condition. This was -- this would have been his sixth day in
intensive care. And as I said, I was shocked when I walked in the
room and very concerned as I tried to get him to focus.

SCHUMER: Right.

OK. Let's continue.

What happened after Mr. Gonzales and Card left? Did you have any
contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up
to us and said that I had an urgent call in the command center, which
was right next door. They had Attorney General Ashcroft in a hallway
by himself and there was an empty room next door that was the command
center.

And he said it was Mr. Card wanting to speak to me.

COMEY: I took the call. And Mr. Card was very upset and
demanded that I come to the White House immediately.

I responded that, after the conduct I had just witnessed, I would
not meet with him without a witness present.

He replied, "What conduct? We were just there to wish him well."

And I said again, "After what I just witnessed, I will not meet
with you without a witness. And I intend that witness to be the
solicitor general of the United States."

SCHUMER: That would be Mr. Olson.

COMEY: Yes, sir. Ted Olson.

"Until I can connect with Mr. Olson, I'm not going to meet with
you."

He asked whether I was refusing to come to the White House. I
said, "No, sir, I'm not. I'll be there. I need to go back to the
Department of Justice first."

And then I reached out through the command center for Mr. Olson,
who was at a dinner party. And Mr. Olson and the other leadership of
the Department of Justice immediately went to the department, where we
sat down together in a conference room and talked about what we were
going to do.

And about 11 o'clock that night -- this evening had started at
about 8 o'clock, when I was on my way home. At 11 o'clock that night,
Mr. Olson and I went to the White House together.

SCHUMER: Just before you get there, you told Mr. Card that you
were very troubled by the conduct from the White House room (ph), and
that's why you wanted Mr. Olson to accompany you.

Without giving any of the details -- which we totally respect in
terms of substance -- just tell me why. What did you tell him that so
upset you? Or if you didn't tell him just tell us.

COMEY: I was very upset. I was angry. I thought I just
witnessed an effort to take advantage of a very sick man, who did not
have the powers of the attorney general because they had been
transferred to me.

I thought he had conducted himself, and I said to the attorney
general, in a way that demonstrated a strength I had never seen
before. But still I thought it was improper.

And it was for that reason that I thought there ought to be
somebody with me if I'm going to meet with Mr. Card.

SCHUMER: Can you tell us a little bit about the discussion at
the Justice Department when all of you convened? I guess it was that
night.

COMEY: I don't think it's appropriate for me to go into the
substance of it. We discussed what to do. I recall the associate
attorney general being there, the solicitor general, the assistant
attorney general in charge of the Office of Legal Counsel, senior
staff from the attorney general, senior staff of mine. And we just --
I don't want to reveal the substances of those...

SCHUMER: I don't want you to reveal the substance.

They all thought what you did -- what you were doing was the
right thing, I presume.

COMEY: I presume. I didn't ask people. But I felt like we were
a team, we all understood what was going on, and we were trying to do
what was best for the country and the Department of Justice. But it
was a very hard night.

SCHUMER: OK.

And then did you meet with Mr. Card?

COMEY: I did. I went with Mr. Olson driving -- my security
detail drove us to the White House. We went into the West Wing. Mr.
Card would not allow Mr. Olson to enter his office. He asked Mr.
Olson to please sit outside in his sitting area. I relented and went
in to meet with Mr. Card alone. We met, had a discussion, which was
much more -- much calmer than the discussion on the telephone.

After -- I don't remember how long, 10 or 15 minutes -- Mr.
Gonzales arrived and brought Mr. Olson into the room. And the four of
us had a discussion.

SCHUMER: OK.

And was Mr. -- were you and Mr. Card still in a state of anger at
one another at that meeting, or is it a little calmer, and why?

COMEY: Not that we showed.

SCHUMER: Right.

COMEY: It was much more civil than our phone conversation, much
calmer.

SCHUMER: Why? Why do you think?

COMEY: I don't know. I mean, I had calmed down a little bit.
I'd had a chance to talk to the people I respected. Ted Olson I
respect enormously.

SCHUMER: Right. OK.

Was there any discussion of resignations with Mr. Card?

COMEY: Mr. Card was concerned that he had heard reports that
there were to be a large number of resignations at the Department of
Justice.

SCHUMER: OK. OK.

And the conversations, the issue, whatever it was, was not
resolved.

COMEY: Correct. We communicated about it. I communicated again
the Department of Justice's view on the matter. And that was it.

SCHUMER: Right.

And you stated that the next day, Thursday, was the deadline for
reauthorization of the program, is that right?

COMEY: Yes, sir.

SCHUMER: OK.

Can you tell us what happened the next day?

COMEY: The program was reauthorized without us and without a
signature from the Department of Justice attesting as to its legality.
And I prepared a letter of resignation, intending to resign the next
day, Friday, March the 12th.

SCHUMER: OK.

And that was the day, as I understand it, of the Madrid train
bombings.

COMEY: Thursday, March 11th, was the morning of the Madrid train
bombings.

SCHUMER: And so, obviously, people were very concerned with all
of that.

COMEY: Yes. It was a very busy day in the counterterrorism
aspect.

SCHUMER: Yet, even in light of that, you still felt so strongly
that you drafted a letter of resignation.

COMEY: Yes.

SCHUMER: OK.

And why did you decide to resign?

COMEY: I just believed...

SCHUMER: Or to offer your resignation, is a better way to put
it?

COMEY: I believed that I couldn't -- I couldn't stay, if the
administration was going to engage in conduct that the Department of
Justice had said had no legal basis. I just simply couldn't stay.

SCHUMER: Right. OK.

Now, let me just ask you this. And this obviously is all
troubling.

As I understand it, you believed that others were also prepared
to resign, not just you, is that correct?

COMEY: Yes.

SCHUMER: OK.

Was one of those Director Mueller?

COMEY: I believe so. You'd have to ask him, but I believe so.

SCHUMER: You had conversations with him about it.

COMEY: Yes.

SCHUMER: OK.

How about the associate attorney general, Robert McCallum?

COMEY: I don't know. We didn't discuss it.

SCHUMER: How about your chief of staff?

COMEY: Yes. He was certainly going to go when I went.

SCHUMER: Right.

How about Mr. Ashcroft's chief of staff?

COMEY: My understanding was that he would go as well.

SCHUMER: And how...

COMEY: I should say...

SCHUMER: Please.

COMEY: ... to make sure I'm accurate, I...

SCHUMER: This is your surmise, not...

COMEY: Yes.

I ended up agreeing -- Mr. Ashcroft's chief of staff asked me
something that meant a great deal to him, and that is that I not
resign until Mr. Ashcroft was well enough to resign with me. He was
very concerned that Mr. Ashcroft was not well enough to understand
fully what was going on. And he begged me to wait until -- this was
Thursday that I was making this decision -- to wait til Monday to give
him the weekend to get oriented enough so that I wouldn't leave him
behind, was his concern.

SCHUMER: And it was his view that Mr. Ashcroft was likely to
resign as well?

COMEY: Yes.

SCHUMER: So what did you do when you heard that?

COMEY: I agreed to wait. I said that what I would do is -- that
Friday would be last day. And Monday morning I would resign.

SCHUMER: OK.

Anything else of significance relevant to this line of
questioning occur on Thursday the 11th, that you can recall?

COMEY: No, not that I recall.

SCHUMER: Thank you.

Now, let's go to the next day, which was March 12. Can you tell
us what happened then?

COMEY: I went to the Oval Office -- as I did every morning as
acting attorney general -- with Director Mueller to brief the
president and the vice president on what was going on on Justice
Department's counterterrorism work.

We had the briefing. And as I was leaving, the president asked
to speak to me, took me in his study and we had a one-on-one meeting
for about 15 minutes -- again, which I will not go into the substance
of. It was a very full exchange. And at the end of that meeting, at
my urging, he met with Director Mueller, who was waiting for me
downstairs.

He met with Director Mueller again privately, just the two of
them. And then after those two sessions, we had his direction to do
the right thing, to do what we...

SCHUMER: Had the president's direction to do the right thing?

COMEY: Right.

We had the president's direction to do what we believed, what the
Justice Department believed was necessary to put this matter on a
footing where we could certify to its legality.

And so we then set out to do that. And we did that.

SCHUMER: OK.

So let me just (inaudible) -- this is an amazing story, has an
amazing pattern of fact that you recall.

SPECTER: Mr. Chairman, could you give us some idea when your
first round will conclude?

SCHUMER: As soon as I ask a few questions here. Fairly soon.

(OFF-MIKE)

SCHUMER: Yes.

And, Senator Specter, you will get the same amount of time.

SCHUMER: I thought with Mr. Comey's telling what happened...

(CROSSTALK)

SPECTER: Just may the record show that you're now 16 minutes and
35 seconds over the five minutes and...

SCHUMER: I think the record will show it.

SPECTER: Well, it does now.

(LAUGHTER)

SCHUMER: OK, thank you.

And I think most people would think that those 16:35 minutes were
worth hearing.

SPECTER: Well, Mr. Chairman, we do have such a thing as a second
round, and there are a lot of senators waiting...

SCHUMER: Yes, OK.

Let me ask you these few questions...

SPECTER: ... including a Republican.

SCHUMER: I'm glad you're here, Senator Specter. I know you're
concerned with the issue.

SPECTER: Lonely, but here.

(LAUGHTER)

SCHUMER: Let me ask you this: So in sum, it was your belief
that Mr. Gonzales and Mr. Card were trying to take advantage of an ill
and maybe disoriented man to try and get him to do something that
many, at least in the Justice Department, thought was against the law?
Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run
around the acting attorney general and to get a very sick man to
approve something that the Department of Justice had already concluded
-- the department as a whole -- was unable to be certified as to its
legality. And that was my concern.

SCHUMER: OK.

And you also believe -- and you had later conversations with
Attorney General Ashcroft when he recuperated, and he backed your
view?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would have
resigned had it come to that?

COMEY: No.

SCHUMER: OK.

But he backed your view over that what was being done, or what
was attempting to being done, going around what you had recommended,
was wrong, against the law?

COMEY: Yes.

And I already knew his view from the hour we had spent together
going over it in great detail a week before the hospital incident.

SCHUMER: Yes.

And the FBI director, Mueller, backed your view over that of Mr.
Gonzales as well -- is that right? -- in terms of whether the program
could continue to be implemented the way Counsel Gonzales wanted it to
be.

COMEY: The only reason I hesitate is it was never Director
Mueller's job or position to be drawing a legal conclusion about the
program; that he was very supportive to me personally. He's one of
the finest people I've ever met and was a great help to me when I felt
a tremendous amount of pressure and felt a bit alone at the Department
of Justice.

But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office of
Legal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on that
issue. And it was largely OLC, the Office of Legal Counsel's work,
that I was relying upon in drawing my -- in making my decision.

SCHUMER: OK. Just two other questions.

Have you ever had the opportunity to recall these events on the
record in any other forum?

COMEY: No.

SCHUMER: OK. And...

COMEY: I should...

SCHUMER: Go ahead.

COMEY: I was interviewed by the FBI and discussed these events
in connection with a leak investigation the FBI was conducting.

SCHUMER: And you gave them these details then.

COMEY: Yes.

SCHUMER: Thank you.

COMEY: But not -- by forum I've never testified about it.

SCHUMER: And after you stood your ground in March of 2004, did
you suffer any recriminations or other problems at the department?

COMEY: I didn't. Not that I'm aware of.

SCHUMER: OK.

Well, let me just say this, and then I'll call on Senator Specter
who can have as much time as he thinks is appropriate.

The story is a shocking one. It makes you almost gulp.

And I just want to say, speaking for myself, I appreciate your
integrity and fidelity to rule of law. And I also appreciate Attorney
General Ashcroft's fidelity to the rule of law as well, as well as the
men and women who worked with you and stuck by you in this.

When we have a situation where the laws of this country -- the
rules of law of this country are not respected because somebody thinks
there's a higher goal, we run askew of the very purpose of what
democracy and rule of law are about.

SCHUMER: And this -- again, this story makes me gulp.

* * * *

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded -- the department as a whole -- was unable to be certified as to its legality. And that was my concern.

SCHUMER: OK. And you also believe -- and you had later conversations with Attorney General Ashcroft when he recuperated, and he backed your view?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would have resigned had it come to that?

COMEY: No.

SCHUMER: OK. But he backed your view over that what was being done, or what was attempting to being done, going around what you had recommended, was wrong, against the law?

COMEY: Yes. And I already knew his view from the hour we had spent together going over it in great detail a week before the hospital incident.

SCHUMER: Yes. And the FBI director, Mueller, backed your view over that of Mr. Gonzales as well -- is that right? -- in terms of whether the program could continue to be implemented the way Counsel Gonzales wanted it to be.

COMEY: The only reason I hesitate is it was never Director Mueller's job or position to be drawing a legal conclusion about the program; that he was very supportive to me personally. He's one of the finest people I've ever met and was a great help to me when I felt a tremendous amount of pressure and felt a bit alone at the Department of Justice. But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office of Legal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on that issue. And it was largely OLC, the Office of Legal Counsel's work, that I was relying upon in drawing my -- in making my decision.

* * * *

SCHUMER: The story is a shocking one. It makes you almost gulp. And I just want to say, speaking for myself, I appreciate your integrity and fidelity to rule of law. And I also appreciate Attorney General Ashcroft's fidelity to the rule of law as well, as well as the men and women who worked with you and stuck by you in this. When we have a situation where the laws of this country -- the rules of law of this country are not respected because somebody thinks there's a higher goal, we run askew of the very purpose of what democracy and rule of law are about. Amd this -- again, this story makes me gulp.

* * * *

SPECTER: And as the acting attorney general, you were doing exactly what you should do in standing up for your authority and to stand by your guns and to do what you thought was right. It has some characteristics of the Saturday Night Massacre, when the other officials stood up and they had to be fired in order to find someone who would -- deputy attorney general and others would not fire the special prosecutor. So that was commendable. When you finally got to the place where the buck doesn't stop, when you got to the president -- as I understand your testimony -- the president told you to do what you thought was right. Is that correct?

COMEY: Yes, sir.

SPECTER: So the president backed you up. And it was necessary to make changes in the terrorist surveillance program to get the requisite certification by the acting attorney general -- that is you?

COMEY: And I may be being overly cautious, but I'm not comfortable confirming what program it was that this related to. And I should be clear. The direction -- as I said, I met with the president first, the Director Mueller did. COMEY: And it was Director Mueller who carried to me the president's direction to do what the Department of Justice thinks is right to get this where the department believes it ought to be. And we acted on that direction.

SPECTER: Director Mueller told you to -- the president said to do what you thought was right?

COMEY: Correct.

SPECTER: Well, how about what the president himself told you?

COMEY: I don't want to get into what -- the reason I hesitate, Senator Specter, is the right thing was done here, in part -- in large part because the president let somebody like me and Bob Mueller meet with him alone. And if I talk about that meeting, I worry that the next president who encounters this is not going to let the next me get close to them to talk about something this important. So I'm -- I want to be very careful that I don't talk about what the president and I talked about. I met with the president. We had a full and frank discussion, very informed. He was very focused. Then Director Mueller met with the president alone. I wasn't there. Director Mueller carried to me the president's direction that we do what the Department of Justice wanted done to put this on a sound legal footing.

* * * *

SPECTER: And when you talked to White House Counsel Gonzales, did he try to pressure you to reverse your judgment?

COMEY: No. He disagreed, again, on the merits of the decision. And we had engaged on that, had full discussions about that. But he never tried to pressure me, other than to convince me that I was wrong.

SPECTER: Well, Mr. Comey, did you have discussions with anybody else in the administration who disagreed with your conclusions?

COMEY: Yes, sir.

SPECTER: Who else?

COMEY: Vice president.

SPECTER: Anybody else?

COMEY: Members of his staff.

SPECTER: Who on his staff?

COMEY: Mr. Addington disagreed with the conclusion. And I'm sure there were others who disagreed, but...

SPECTER: Well, I don't want to know who disagreed. I want to know who told you they disagreed.

COMEY: OK.

SPECTER: Addington?

COMEY: Mr. Addington. The vice president told me that he disagreed. I don't remember any other White House officials telling me they disagreed.

SPECTER: OK. So you've got Card, Gonzales, Vice President Cheney and Addington who told you they disagreed with you.

COMEY: Yes, sir.

SPECTER: Did the vice president threaten you? COMEY: No, sir.

SPECTER: Did Addington threaten you?

COMEY: No, sir.

SPECTER: So all these people told you they disagreed with you? Well, why in this context, when they say they disagreed with you and you're standing by your judgment, would you consider resigning? You were acting attorney general. They could fire you if they wanted to. The president could replace you. But why consider resigning? 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.

SPECTER: When they said you could find no legal basis for?

COMEY: I had reached a conclusion that I could not certify as...

SPECTER: Well, all right, so you could not certify it, so you did not certify it. 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?

COMEY: Yes.

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.

SPECTER: Then it was going forward illegally.

COMEY: Well, the only reason I hesitate is that I'm no presidential scholar. But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law. And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.

SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal. The point that I'm trying to determine here is that it was going forward even though it was illegal.

COMEY: And I know I sound like I'm splitting hairs, but...

SPECTER: No, I don't think there's a hair there.

COMEY: Well, something was going forward without the Department of Justice's certification as to its legality. It's a very complicated matter, and I'm not going to go into what the program was or what the dimensions of the program...

SPECTER: Well, you don't have to. If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality. There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign. So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality." And given that, I just -- I couldn't, in good conscience, stay.

SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning. I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

SPECTER: OK. Then it wasn't illegal.

COMEY: That's why I hesitated when you used the word "illegal."

SPECTER: Well, well, OK. Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal. It's not illegal to violate custom, is it?

COMEY: Not so far as I'm aware.

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was. The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK. Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.

COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal. I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.

SPECTER: OK. I will not ask you -- I have a rule never to ask the same question more than four times... (LAUGHTER) ... so I will not ask you again whether necessarily from your testimony the conclusion is that what the president did was legal -- not illegal.
Posted 11:48 AM by Marty Lederman [link]