Balkinization  

Thursday, May 17, 2007

Is This the Best the Administration's Surrogates Can Do? (with speculation about why the White House was so eager to obtain Ashcroft's signature)

Marty Lederman

Doug Kmiec, head of OLC at the end of the Reagan Administration, has a profoundly misguided Op-Ed in tomorrow's Washington Post in which he tries to minimize the import of James Comey's testimony -- and even goes so far as to insinuate that Comey, Ashcroft and Goldsmith are the ones who acted in an ethically dubious manner!

Where to begin?

1. Kmiec kicks off his Op-Ed by calling Comey's testimony "staggeringly histrionic." Which is, uh, "staggeringly" wrong. Comey is hardly an eager or self-aggrandizing witness. He is about as credible as any witness you'll ever see, supremely cautious in what he says -- he even repeatedly declines to take the bait when some Senators try to elicit testimony that he knows will appear as sound bites damaging to the President and Attorney General -- and nothing about his presentation was the least bit histrionic. Indeed, it's about as far from histrionics as one can imagine. But don't take my word for it. Just watch the video.

2. Kmiec then attacks Senator Specter for suggesting that the hospital incident has an air of the Saturday Night Massacre about it -- "the comparison to Watergate is wholly inapt," writes Kmiec, because "Watergate involved a real crime."

Well, this case involves a "real crime," too -- systematic violations of a very important federal statute designed to protect Americans from wiretapping by their government, 18 U.S.C. 1809. But that's not really the central point for these purposes, because Specter's obvious reference was simply to the remarkable parallel in that the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. Attorney General Richardson and DAG Ruckelshaus did not resign in October 1973 because they concluded there had been a "burglary for purposes of political dirty tricks," in Kmiec's words. The burglary was an old story. They resigned because the President insisted that they fire prosecutor Archibald Cox when Cox subpoened Nixon's tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales.

3. Kmiec next writes that "[e]ven if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had 'broken the law.'"

Actually, it would. The OLC conclusion was not that the President "lacked authority" in the first instance to order the surveillance -- it was, instead, that a duly enacted statute, FISA, flatly prohibited the President from exercising what would otherwise be his constitutional authority -- and that Article II of the Constitution does not give the President the power to disregard such a statutory restriction. (To the extent past Presidents have engaged in this sort of electronic surveillance in prior wars (unlikely), it was not in violation of a statutory limit.)

4. Then we get to the heart of the matter. Kmiec focuses on two points that happen to be correct, but that do not support his attack on Comey.

First, he notes that the signature that Gonzales and Card were trying to procure from the incapacitated John Ashcroft was a protocol that the President himself had established "to internally discipline an exercise of power."

Second, Kmiec stresses that for purposes of establishing the official legal views of the Executive branch, OLC's legal judgments are subject to being overridden by the President himself.

These assertions are both true. (OLC's legal judgments are binding within the Executive branch, except in the rare cases where they are overridden by OLC itself, the Attorney General, or the President.)

But there is no reason to think that Comey, Ashcroft or Goldsmith thought otherwise. Of course they did not.

Which raises the two central mysteries of the case that Kmiec mangles:

(i) Why did the President seek the AG's signature, anyway, if it wasn't required by statute and the President could have the final word?

And,

(ii) If the President does have the final say, why did the entire command structure of the Justice Department threaten to resign when the President exercised that prerogative?

Kmiec himself is befuddled by the first question: "Gonzales was obviously wrong to think that the signature of a man who recused his office because of illness would have any legal purchase, and why he would pursue it from an official under sedation -- if that is what was intended by his trip to the hospital -- is mystifying."

Why, indeed.

There are probably two reasons that Ashcroft's certification was thought to be of such importance. The first was that DOJ sign-off was necessary to give some comfort to the NSA. If you were NSA General Counsel, how would you react if the President asked you to engage in conduct that is on its face criminal; if you learned that Jack Goldsmith and John Ashcroft of all officials, concluded that there was no legal way around the statutory restriction and refused to be associated with it; and if the only justification the President offered you for obeying his order was that he was adopting David Addington's, uh, shall we say idiosyncratic, view of the Commander-in-Chief Clause, notwithstanding that such attorneys as Goldsmith and Ashcroft thought it was untenable?

Would you ask your employees to go ahead and do things that FISA prohibits under those circumstances?

Second, the AG signature might have been necessary to induce the requisite private actors -- telcom companies in particular -- to continue to go along with the program.

18 U.S.C. 2511(2)(a)(ii) provides that "providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with -- (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title [not relevant here] or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." That statute further provides, importantly, that "[n]o cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter."

Now, imagine you are the CEO or General Counsel of a telcom company that has been assisting the NSA in electronic surveillance for two years, assured that what appear to be your violations of FISA do not subject you to legal exposure because you have been relying on the certification "by the Attorney General of the United States that no warrant or court order is required by law." And then one day,the AG's signature disappears from the certification -- replaced only by the President's own signature. What do you do?

This is, to be sure, speculation. But let's assume that one or both of these are the reasons that the White House so desperately wanted the AG's certification -- because even the signature of a sedated AG would have "legal purchase," in Doug's words, for the audiences that mattered (the NSA and the telecom companies). And the Acting AG had refused to provide it. Well, in that case, one can imagine why two of the top-ranking officials in the White House might try to rouse the AG from his hospital stupor to induce him to provide his John Hancock. But if so, isn't there something just a tiny bit disturbing -- creepy, even -- about trying to obtain such a signature from a sedated man who has formally delegated his authority to the man who just told you "no"? Hmmmmm . . .

OK, so if Comey and Co. understood that the legal call was ultimately the President's to make, why the threatened resignations? Well, perhaps it's enough that Goldsmith, Comey and Ashcroft had personally witnessed this extraordinarily unorthodox and unseemly turn of events. But the precipitating incident, it appears, is that even after Ashcroft heroically roused himself to tell Gonzales and Card to take their certification papers and go home, the President went ahead with the program anyway -- opting to embrace the Vice President's extreme constitutional views even after a series of DOJ officials, in extremely trying circumstances with so much at stake, had bravely and resolutely told the President that those views of the Constitution were dead wrong.

If the President ignored that legal judgment and run roughshod over the views of OLC, the DAG and AG, then of course the honorable course of action would be to resign. It is not that Comey, et al., thought the President was powerless to overrule OLC -- they knew full well that he could. It is simply that if the President does not have faith in OLC's legal judgment about how he must "take care that the law is faithfully executed" in these extraordinary circumstances . . . well, then, their legal advice, and OLC's traditional role as the principal internal check on executive overreaching, has been fatally compromised. And then resignation is the honorable thing to do.

Kmiec describes this as no more than an everyday "spat" in which "reasonable legal minds" simply disagreed about an arcane issue of some legal technicality. If by this point any of my readers truly believes that is what was happening here, then there's nothing I could possibly write that would convince you otherwise. Obviously, that is not the way that Ashcroft, Comey and Goldsmith saw it -- for which we can be extremely grateful.

I do not mean to be suggesting that the AG, DAG and head of OLC should resign any time a President chooses not to follow an OLC decision. But sometimes one should. And this is such a case -- involving a criminal statute designed to limit the President's authority, where the President defends his disregard of the felony restrictions by asserting that the statute is unconstitutional when applied to him on the basis of a theory lacking any substantial basis in the Constitution's text and history -- a theory that OLC appears to have expended considerable institutional capital in exposing as misguided. [Thanks to Walter Dellinger and Larry Tribe for their thoughts on this distinction.]

That's a far cry from some minor intramural "spat."

5. Finally, there's Kmiec's closing paragraph:
Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.
Yikes. This paragraph is, at best, simply bizarre. For example:

-- "Bush administration officials are often portrayed as seeking a revival of diminished executive authority." WHA? Since when? Which officials would those be who are seeking a revivial of diminished Executive authority? [UPDATE: A former colleague writes to suggest that perhaps what Kmiec meant to say here is something like "Bush administration officials are often portrayed as seeking a revival of executive authority that had been diminished in previous years." That's certainly possible -- but if so, it wouldn't make the remainder of the paragraph any more explicable: It would be useful if Comey and Goldsmith understood that? If one thing is clear, it's that they understood all-too-well -- better and earlier than anyone else -- just what Dick Cheney and David Addington were trying to "revive"; indeed, that's what prompted the DOJ officials to threaten to resign.]

-- "At this point, it simply would be useful if they understood it" (if who understood what? if Comey and Ashcroft and Goldsmith understood that Bush administration officials are "often portrayed as seeking a revival of diminished executive authority"?)

-- "and did not engage in futile and ethically dubious maneuvers"

futile? Their threatened resignation successfully prevented what they saw as lawless executive aggrandizement.

-- "ethically dubious maneuvers"?! What on earth is Kmiec referring to here? Is he suggesting that Comey has acted unethically?! I'd call that a calumny -- except that this paragraph makes so little sense that I'm not sure what to call it.

-- "or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment."

Nope, not "every time." Only in those exceedingly rare historical cases when the "disagreement" causes the President to act in ways that the Justice Department has determined to be unlawful and that threaten to fundamentally alter the checks and balances of our constitutional system. Saturday night massacres don't happen every day of the week, after all.

P.S. One final aside. This is really neither here nor there -- indeed, the comment in Kmiec's column is completely out of the blue and not relevant to anything at issue in this controversy -- but he is simply wrong to write that "Executive agencies can't sue each other over contested points of law, since they all work for the president." Really, they can -- I've seen it done! See generally Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893 (1991).

Comments:

So, Marty, did you know Kmiec or not?
 

This might start off topic, but this post brings to mind a thought I have had repeatedly about the legal profession.

Attorneys are generally held to be officers of the court, and held to high ethical and professional standards. They are also asked to serve the best interests of their clients.

When a client asks about performing an action of dubious legality or actual illegality, how far does the attorney's conflicting requirements take them? Should they actually tell their client that an act is illegal (or can be held to be a breach of law/contract/contstitution)? And what is the requirement (ethical or legal) for an attorney who is requested by a client to find an interpretation of a law/contract that will at least seem to allow such an act to go forward?

I ask this as I deal with a limited section of law, basically tasked with thwarting attempts to defraud companies I work for (thus the nom de plume). I therefore have to detect such attempts, including data analysis, investigations, reconstruction, and reporting. A large part of it ends up as differentiating between legitimate but suspicious traffic and actually fraudulent traffic. But in that differentiation, I have to also comply with various commercial rules, regulatory requirements, and laws. Having dealt with many attorneys to hone this compliance need, I have often surprised them with interpretations that were a)well within compliance boundaries and b)effective.

Now somewhat back on topic: Why do all of the stories and examples provided about this administration, then, include attorneys, law enforcement officials, and compliance agencies trying to find the narrowest and most tortured interpretation of the law that will allow them to achieve their goals?

I have read many blogs (here and Glenn Greenwald especially) who have commented that after 9/11, with a compliant Congress, many of these programs would probably have been passed into law (like the Patriot Act) with barely a blink if they also passed the barest of sniff tests. Yet we have additions to laws by Senate staffers after the last minute that no one could read before the final vote. We have programs that takes the best attorneys in our Justice Department and Executive Branch months to devise legal interpretations to justify. And still apologist attorneys like Kmiec, Althouse (her take on the Comey testimony is painful), Bart and Charles here repeatedly say that all of this is ok, normal, don't look behind the curtain.

Being a legal layperson, legal processes can be arcane. However, without legal training, one can read a law and devise a way to comply easily (even if implementation could be difficult). Why can't this administration do the same, when they also could have had laws rewritten even more than they did (or signing statemented away)?

Fraud is theft by deception. When I see so much deception, I start to look for what is being stolen. I am afraid it is my country, and what it could be.
 

The problem with attorneys anymore is that they no longer try to give their clients the best defense but seek out to subvert the law to prevent prosecution. Bush and his administration (including the Justice Dept.) is merely the evolutionary result of a justice system that is crumbling beneath the repeated batterings of the rich and their big guns. It is merely what is said, how it is said, and the appearance of the actions taken rather than the spirit of the entire event which matters most anymore in the court of law. Sure they fired some lawyers. They had that right, yeah? So they intended to hire based on political leanings and nepotism. These are jobs for the Executive and thus their decision which matters most.

Everything the Executive does anymore is meant to undermine any possible control that may be exerted upon it. Bush is trying to slip the leash and the decrepit judicial system as well as an emasculated Congress is making that far too easy.

Uh, the current state of affairs in Washington is enough to make me ill. My frustration with it all led me to write a nice little satire on the state of America today. Of course I use Heaven in the place of D.C., but Bush says that is where he draws his inspiration from so it makes perfect sense if Heaven is even more warped than the world we live in. If you're interested, surf on over to Anti-Christ to see what I mean.
 

Professor,

A handful of us will read your rebuttal here, and have already read if not the full transcript then at least those parts presented here. How many thousands will read Kmiec's version?

The big lie lives on.

Of course this is but one iteration of the administration and its apologists using the big lie strategy. The big lie of our era most deserving of the name is the lie that nine-one-one "ushered in an era of a new type of war." As long as we let that foundational premise stand we will be fighting a losing battle. These people have built their house on sand, attack that foundation. Absent a war footing the rest is moot.

I was at a presentation the other day given by an ACS member and former ACLU SoCal president, presenting various reasons to impeach Cheney and Bush. One quote sings out in my mind, allegedly from a Republican Congressperson, "When I voted to send troops to Afghanistan I wasn't authorizing warrantless wiretaps." But what this fails to address is that the original AUMF doesn't include the word "Afghanistan". Instead it writes a blank check for a war footing so long as the President thinks is necessary to pursue justice against those persons "he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001..." We already know, from the mouth of the Vice-President himself, as well as from the various apologists who frequent Balkinization, that the administration has no qualms about determining you or me to have aided those attackers after the fact by our very opposition to acceding to the abuses of power the administration claims is needed for its "new kind of war," the "war" on terror.

That is the big lie of our age, that terror can be addressed by war and that the events of nine-one-one posed a legitimate existential threat to the nation sufficient to trigger "war powers" for the Administration. Until that lie is exposed we will be mired in the steady stream of outrages of which the events in Comey's testimony is only one example.

Respectfully...
 

Kmiec's apologetics generally are more subtle than this screed. If it really represents his view of the ethical duty of senior government attorneys, it makes me wonder what he might have rolled over for when he was at OLC.
 

This comment has been removed by the author.
 

Professor Lederman:

You may be onto something with your speculation that the AG was signing off on the program for the private carriers rather than for the government itself.

That would explain why the White House appeared to be very concerned about the issue. Having the AG sign off on the program would not substantially improve the legal position the President had staked out. However, the President has demonstrated that he cares very deeply for this program and the TSP would come to a grinding halt if the telecoms pulled out.

As private actors, the telecoms are in a much more exposed position than is the Executive. They would want assurances from the government that they were legally covered.

Very astute observation.
 

I read the phrase "engage in futile and ethically dubious maneuvers" as directed at Alberto Gonzales, who Douglas Kmiec admits "was obviously wrong to think that the signature of a man who recused his office because of illness would have any legal purchase...." I think that only the phrase "contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment" is directed at James Comey and John Ashcroft. Had Kmiec meant to direct both phrases at Comey and Ashcroft then a conjunctive rather than a disjunctive would have better fit the sentence.
 

Shorter Kmiec:

Memo from VRWC to Justice:

Suck it up and get on with the coup!
 

"You may be onto something with your speculation that the AG was signing off on the program for the private carriers rather than for the government itself."



It is astonishing that, FIVE YEARS ON, we are discussing the merits of a governmental surveillance program, which is entirely secret (except for the parts that are reported in The One Per Cent Doctrine)

In addition to the telecoms, the financial data transporters have been coopted. First Data Resource, carrying much of the credit/debit data for us, had FBI agents on site to oversee data retrieval.

FDR entered into a partnership with a sub unit of the DOD, and a large windowless buiding - hardened is the term - with berms around it and a roof full of airconditioning equipment, now sits adjacent to the First Data campus, doing God only knows what.


It is beginning to look like Americans may well never learn the depth and breadth of our yoke to the federal government.
 

Kmiec's "scholarly" argument is that OLC's authority for legal review is a presidentially revocable authority, and therefore OLC's opinion -- that the president's actions were illegal -- was a presidentially revocable opinion.

That pretty much boils down to an endorsement of
FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law.
 

Perhaps this is because I don’t regularly read conservative blogs, but I am surprised that I have yet to read anyone offering this narrative of the hospital visit:

From the perspective of the White House, James Comey appeared to be taking advantage of John Ashcroft’s illness to force a major policy change that would have profound implications for our nation’s security. Comey’s appointment as Acting Attorney General had been made only to allow him to keep the Department in order on a temporary basis while Ashcroft recovered. By visiting the hospital, Alberto Gonzales and Andrew Card appropriately ensured that John Ashcroft had been briefed on, and supported, this major policy change. Once Ashcroft affirmed his support for Comey, the White House representatives left the hospital.

Based on what we have heard so far, this narrative strikes me as plausible. Of course, it does nothing to address the real problem (which is that, for over a year, the White House falsely relied on the consensus support of the Department of Justice to assure us that neither we, nor our elected representatives in Congress, need know more about these surveillance programs that facially violate FISA). For the immediate embarrassment of the hospital visit, though, that narrative seems to work rather well to me.
 

By visiting the hospital, Alberto Gonzales and Andrew Card appropriately ensured that John Ashcroft had been briefed on, and supported, this major policy change.

This excuse ignores the legal fact that Ashcroft had formally ceded his authority to Comey.

And if it was simply a matter of finding out if Ashcroft had been briefed, the White House need only have asked Comey. But they did not even engage him in the hospital room after Ashcroft's dramatic statement.
 

Perhaps this is because I don’t regularly read conservative blogs, but I am surprised that I have yet to read anyone offering this narrative of the hospital visit

You don't have to read conservative blogs. The "Talking Points du Jour" get spat out from where ever and hit threads like this, or over at Glenn Greenwald's, by the the operatives like Bart who are either paid, or volunteer, to disseminate them. That "Comey as thug" "narrative" showed up at Greenwald's one or two days ago (after Marty's Godfather scene post, oddly). It'll be all over Right Blogistan by now.
 

Bushit is a felon. That smug smirk of his belies his personal belief that he is not under the LAW. That is for poor people.
When will we see justice prevail in this country? When we limit the power of the corps, thats when. Bushit is a shill for wealthy corps or he wouldn't even be close to office.
A coup has occured in our once great country. It has been taken low by greed. Can the idea of freedom survive bushit?
 

jao writes: This excuse ignores the legal fact that Ashcroft had formally ceded his authority to Comey.

That is addressed with the line: "Comey’s appointment as Acting Attorney General had been made only to allow him to keep the Department in order on a temporary basis while Ashcroft recovered." Remember, since 2003, John Ashcroft had been regularly signing the re-authorizations for this program. From the White Hosue perspective, Ashcroft falls ill and then suddenly James Comey, who is meant only to be a temporary caretaker, won't sign the re-authorization. If I accepted the White House's assertion that this program was vital to national security, then I would agree that a decision by Comey to refuse re-authorization would be a dubious use of his temporary authority, absent concurrence by Ashcroft.

jao writes: And if it was simply a matter of finding out if Ashcroft had been briefed, the White House need only have asked Comey.

If failure to re-authorize this program really did imperil national security, then I could understand their wish to hear it directly from Ashcroft.

jao writes: But they did not even engage him in the hospital room after Ashcroft's dramatic statement.

Further discussion at the hospital would have been inappropriate; Ashcroft's visitors were restricted. Andrew Card then contacted Comey by telephone to arrange further discussion of the matter at the White House. Unfortunately, that telephone conversation became heated due to honest misperceptions over what happened at the hospital.

Please note: I do not suggest that this is what actually transpired. I merely am surprised not to have read Administration supporters offering this narrative, which does strike me as plausible from what we have learned so far.
 

Anonymous Bosch writes: That "Comey as thug" "narrative" showed up at Greenwald's one or two days ago (after Marty's Godfather scene post, oddly). It'll be all over Right Blogistan by now.

That doesn't surprise me. I just would have expected to see more of it over here by now. Like you say, there are a few posters here who usually keep us updated on the talking points.

An obvious problem with the "Comey as thug" narrative is that James Comey certainly didn't fit the part during his measured, sober and credible testimony. Such facts, however, rarely limit talking points.
 

I read the "futile and ethically dubious" as referring to Gonzales' trip to get Ashcroft's signature, not anything Comey did.

I also read the "diminished" as "previously-diminished."

Kmiec is at a bit of a disadvantage; the space and editing constraints of the weekday Washington Post op-ed page require quite a bit of oversimplification and can result in ambiguous edits as you identify in #5, but it takes some effortful misreading to get to the conclusions you draw in that paragraph, especially since Comey expressly states repeatedly that he did not believe a presidential action overriding Ashcroft would be illegal.
 

By visiting the hospital, Alberto Gonzales and Andrew Card appropriately ensured that John Ashcroft had been briefed on, and supported, this major policy change.

They may also have violated the law. It may have been illegal.
 

QA, you can find much of your suggested argument on this thread at Volokh. The poster jukeboxgrad does quite a good job eviscerating it.
 

Quitealarmed, this premise strikes me as weak:

From the perspective of the White House, James Comey appeared to be taking advantage of John Ashcroft’s illness to force a major policy change that would have profound implications for our nation’s security.

If you delete "From the perspective of the White House", it is manifestly false as Ashcroft was on board before he fell ill.

Furthermore, surely it's quite implausible -- not impossible, but implausible -- that the White House didn't at a minimum know that a denial of reauthorization was a serious possibility. In particular, the DoJ had demanded and gotten more details on the program than it had in the past. Surely this would have involved significant push back at least up to the level of Addington and Cheney, alerting them to the fact that a serious reconsideration of the legal opinion was in play.
 

If you delete "From the perspective of the White House", it is manifestly false as Ashcroft was on board before he fell ill.

Right, but Ashcroft got very sick the same day as his meeting with Comey, didn't he? Was justice able to signal that change of heart before he was admitted to the hospital?

What concerns me is the timing. If it was just a good-faith attempt by the White House to make sure they weren't being snowed by the new guy, wouldn't they have tried to confirm Ashcroft's opinion much earlier?

The best counter to that I can think of is that Ashcroft was far too ill, and they wanted to give him the maximum amount of time to recover before bothering him.

JaO's point still holds though: Comey was the legal authority at Justice at that moment, regardless of any desire to respect Ashcroft's prior (and future) claim to that title.
 

You have completely misunderstood this last paragraph:

Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

(1) Bush administration officials are often portrayed as seeking to resuscitate a diminished executive authority.

(2) At this point, it would be useful if those Bush officials, like Gonzales, Card, and even Bush and Cheney simply understood Executive Authority, that is, understood they didn't need the AG's approval for a damn thing...

(3) ...and did not engage in futile and ethically dubious maneuvers like rushing to the sick AG's bedside and trying to circumvent the acting AG's authority, because again, the unitary executive doesn't need this approval, and deigning to seek it was unnecessary.
 

Mark Field writes: QA, you can find much of your suggested argument on this thread at Volokh. The poster jukeboxgrad does quite a good job eviscerating it.

Thanks, Mark. The poster Kazinski does make a similar argument in that thread, but he fails to resist the temptation to vilify James Comey. (Despite protestations of liking Comey, Kazinksi repeatedly attacks his character.) Mostly, I think that is what opens the door for jukeboxgrad to eviscerate his argument. I find the argument much more plausible when presented as honest differing points of view.

Jukeboxgrad does provide a strong counter to the argument even when presented without vilifying Comey in this post. He identifies several reasons to doubt the White House's motives. I don't think that wholly eviscerates the argument, but I do think it is a strong counter.

By the way, I agree with one of Kazinksi's points. In this post, he writes that he'd like to hear from Mrs. Ashcroft. I would also, although my expectations about what she would say are quite different that Kazinski's.
 

Thank you, Burke. I was just about to type that explanation as well ; )

QuiteAlarmed:

Can we also get Chuckie Schumer under oath as to what he knows and when did he know it?
 

Comey in his own testimony stated that before Ashcroft's hospitalization, the two had discussed this matter at length, based on OLC's advisement. They had both agreed the program should be stopped, and had informed the White House of this fact

The idea that Card and Gonzo were valiantly trying to warn Ashcroft of a Comey betrayal is absurd. Any one of the many other people involved in this narrative could easily have contradicted Comey's testimony by now, and would have if anything in it was substantially false

Comey and Ashcroft both agreed to kill the program, and the only reason Card and Abu Gonzales were sneaking to his hospital bed was to try to dupe an ill, incapacitated man into changing his mind and "overruling" the acting Attorney General
 

crayz:

According to Comey's own account of Ashcroft's reaction to Card and Gonzales, he arguably was not incapacitated.
 

Burk & Charles:

The sentence was: At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

"They" are the same they in both the first and second clause. The futile and ethically dubious are the same people as the those contemplating resigning.

If Kmiec writing is so unclear, ambiguous, and outright incompetent that he would conflate the two, and yet mean two different "theys", I really don't understand why you want him on your side. I never trust the arguments of a person who lacks the basic syntactic parsing of a freshman in English 101.

But I guess y'all are feeling pretty desperate about now for allies.
 

crust writes: If you delete "From the perspective of the White House", it is manifestly false as Ashcroft was on board before he fell ill.

True, but if you delete that phrase then you fundamentally change what I wrote. The narrative is designed to suggest that there are two different, both honestly-held, viewpoints. James Comey knows that John Ashcroft made the decision before falling ill, so from his viewpoint he is properly carrying out his duties as the Acting Attorney General. The White House, on the other hand, either doesn't know that the decision was made with Ashcroft or isn't ready to accept Comey's assurances that it was. This makes their viewpoint radically different.

crust writes: Furthermore, surely it's quite implausible -- not impossible, but implausible -- that the White House didn't at a minimum know that a denial of reauthorization was a serious possibility.

Let’s assume the White House did know that. I think they can still justify wanting to hear a decision of this magnitude from John Ashcroft, not from someone they may have viewed as a temporary caretaker. Also, if you attribute paranoia to this administration (as I do), then their knowledge that James Comey had closely scrutinized the program may have made them more suspicious that the decision reflected his views and not those of John Ashcroft.

Yes, as pms_chicago and jao correctly state, James Comey was the Acting Attorney General, but I think Comey himself recognizes this as a decision he should have been reluctant to make on his own (which is why he didn’t do that).
 

RandomSequence:

I took Burk's post as sarcasm.
 

crayz:

I just reviewed Comey's testimony, and it is not clear to me he even implied that ASHCROFT told the White House he agreed with OLC prior to the Card / Gonzales meeting at the hospital. Do you have some other source for that?
 

crayz writes: They had both agreed the program should be stopped, and had informed the White House of this fact

Are you saying that John Ashcroft informed the White House of the decision before he was striken ill? If that's the case, then it certainly refutes the narrative I have discussed. I know that James Comey testified that Ashcroft was striken ill within hours of the meeting when the decision was made. Did he also testify that the White House was informed during that time?
 

See Charles what you've made of your credibility? Even the most absurd statements can't be differentiated from your arguments.

To have sarcasm, irony, or any variation on absurdity, you have to have a rational comparison. That's the danger in being a party line guy, who just faithfully spews the talking point of the day, no matter how irrational. No one can tell when you're joking, because those irrational statements lack contrast.
 

No, he didn't so testify, QuiteAlarmed.
 

RandomSequence:

Is that the first time Burke posted, or is he / she also a "party line guy, who just faithfully spews the talking point of the day, no matter how irrational"? If not, why couldn't you tell he / she was joking?

You forget I am here simply as the devil's advocate. For all you know, I'm James Carville.
 

QuiteAlarmed:

"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 . . .

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."

The next day was Wednesday, March the 10th, the night of the hospital incident.
 

Haven't seen Burke before. But you, Someone and Bart have the same MO - repeat the talking point of the day ad nauseum, whether it has any foundation in law, politics, history or tradition. For all I know, you're all radical Maoists sent here to make all conservatives look like asses, in order to discredit reasonable conservatives and sow culture war in order to advance the dialectic. It's a fairly safe assumption, barring further evidence, that anyone you support is spewing nonsense - not that I haven't been wrong before.

A Devil's Advocate should at least represent the devil well - even he deserves competent counsel, ask Job. Your ilk should be sued for malpractice by Beelzebub.
 

Randomsequence writes: "They" are the same they in both the first and second clause. The futile and ethically dubious are the same people as the those contemplating resigning.

As I read that sentence, the clauses refer to two different subsets of the main subject.

The subject "they" refers to "Bush Administration officials" (the subject of the preceding sentence). Alberto Gonzales, Andrew Card, John Ashcroft, James Comey and Robert Mueller were all Bush Adminstration officials. Some of these Administration officials -- namely Gonzales and Card - are the futile and ethically dubious. Other Administration officials - namely Ashcroft, Comey and Mueller - contemplated resigning.
 

And in other news from the "reality-based community" . . .

Randomsequence writes, "Haven't seen Burke before. But you, Someone and Bart have the same MO - repeat the talking point of the day ad nauseum, whether it has any foundation in law, politics, history or tradition. For all I know, you're all radical Maoists sent here to make all conservatives look like asses, in order to discredit reasonable conservatives and sow culture war in order to advance the dialectic. It's a fairly safe assumption, barring further evidence, that anyone you support is spewing nonsense - not that I haven't been wrong before.

A Devil's Advocate should at least represent the devil well - even he deserves competent counsel, ask Job. Your ilk should be sued for malpractice by Beelzebub. "

Lol
 

@QuiteAlarmed:

Well, it's difficult. The entire op-ed is so poorly written and mind-bogglingly obtuse, it's like trying to pin down a schizophrenic. Once again, a sign of political hysterics.

But the paragraph is: Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and ?they? did not engage in futile and ethically dubious maneuvers or ?they did not? contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

So they are Bush administration officials who understand "the revival of diminished executive authority". It would be nice if that last clause made any sense at all, since then we could pin down the group. "Or" is an unfortunate word - it could mean two disjoint subsets, or simply the natural reading, one set that sometimes engages in the first, and other times engages in the latter.

If the former, a decent writer who is actually trying to advance a sensible point would specify with a reference word distinguishing the first group from the second group, instead of not only dropping the reference, but even dropping the subject pronoun of both cases.

In your reading, the penultimate they is some of them and the last they is others of them. That's a whole lotta of referents to be dropping. The simplest interpolation is my reading. But it's hard to know - Kmiec may be off his medication, and the editor may be a Regent's University grad.
 

Someone, when you flame an opponent, a sign of rhetorical talent is not just rolling your eyes. I understand that it's internet lingo considered good form by 13 year olds, but it's not particularly eloquent or entertaining, and doesn't work close to as well as full body language in meat space.

Just trying to help. Wouldn't want you to respond in court with LOL!
 

RandomSequence: I have no interest in defending Douglas Kmiec's opinions or writing style. I suspect that he was intentionally vague to avoid expressly naming Alberto Gonzales' actions ethically dubious. When I read the Op-Ed, though, I felt no confusion about the referents.
 

The allegations of malpractice notwithstanding, you didn't answer why you couldn't you tell Burke was joking. I could tell, even before reading his / her blog.
 

Sorry, RandomSequence, that should read "you didn't answer why you couldn't tell Burke was joking." Of course, you are under no obligation to answer.
 

Charles,

I couldn't tell because of the handle reference to Edmund Burke, whose anti-French Revolution and pro-American revolution polemic is often a heroic and mythological epic to conservatives. Since few mentally active conservatives post here (excepting such characters as Brett, who displays an admirable commitment to principle), it is generally safe to assume that an irrational statement coming from them is not an intentional attempt at humor, but is simply parrot-noises.

All clear now, Charlie-baby? Can we get back to how you are willing to crush the testicles of other people's children, while protecting your children at the cost of the rest of the human race? I'm still thinking of reporting you to AGAG!
 

Back to one of the points of the post, if I may?

That 18 USC 2511 strikes me as one heck of a FISA loophole -- esp with this AG, but really with any AG. And that section 2518 opens the door to a whole number of people being able to certify that 'everything's fine, keep moving.' I take Mr. Lederman's word for it that section's "not relevant" to this story, but it seems like another set of abuses waiting to happen. I can't parse the legalese there: is "principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State" equivalent in any way (including precedent) to a U.S Attorney? Or does that mean only "State of XYZ" (ie, Ohio, Montana, etc.) prosecutors?
 

Oh, come on guys, the best evidence, and witness is Mrs. Ashcroft! I'm going to assume that she wasn't exactly dialed in to all the details of the program, whatever it was.

So what happened exactly? Somehow a call gets through to the room. Did AG Ashcroft speak? Then he turns to his wife and says "Call Comey!" Otherwise she takes the message, and all on her own sees the huge problem and calls Comey. Either one or both of them was obviously alarmed. When Comey arrived, he was allowed to try to orient Ashcroft to time and place. Think about that! I think when we hear the final story, it will be much worse. Maybe Mrs. Ashcroft can deliver the final blow. Then the opinion writers can go after her.
 

I don't see why "Either one or both of them was obviously alarmed."
 

I guess that "crayz" is gone for the weekend as well?
 

Oh random,

I'm not going to waste any rhetorical talent on you. When you make your ridiculous statement which included Maoists, Job, and Beelzebub, sometimes all one can do is laugh...
 

Someone, I doubt you have any rhetorical talent to waste. Conserve it, please conserve it...

You do understand it was a joke, don't you? That it was intended to be ridiculous?

Do I have to explain jokes to both you and Charles? About how you combine disparate elements in a traditional structure to produce a feeling of absurdity and conflict that causes most fairly intelligent primates to grimace? I don't think Charles got it (I'm actually pretty damn sure he doesn't), but I've got hope for you yet!
 

I was the one who "got" Burke's joke.
 

The problem with QuiteAlarmed’s reading of the middle “they” as referring to AG & AC is that both of the surrounding “theys” refer to Comey et al. How shall we read the first phrase “it would be useful if they understood it”? In QA’s reading, “they” would have to refer to those in the Bush Administration seeking a revival of diminished executive authority. Obviously “they” would already understand their own motivations (to revive authority), so QA’s reading would appear to be incorrect. What Kmiec actually means is abstruse. I took “understood” the “revival of diminished executive authority” to mean something like “accepted the revival of diminished executive authority.” In such a reading, Kmiec is saying: “It would be useful if Comey et al. accepted the revival of diminished executive authority and they did not engage in futile and ethically dubious maneuvers….” On the other hand, it is a bit hard to swallow that anyone could call what Comey did futile or dubious, so maybe QA is right.

Thanks to QA and RS for the interesting textual analysis practice, even if it the answer is befogged.

LeNeveu
 

Is it possible(or would it be important if) the document in the envelope that Gonzales carried was backdated, or was going to be?
 

I appreciate various kind words that have been said about me in this thread.

quite: "The White House, on the other hand, either doesn't know that the decision was made with Ashcroft or isn't ready to accept Comey's assurances that it was."

I understand what you're trying to say, but I just can't buy that business about "isn't ready to accept."

First of all, I think crust must be right, that the WH must have known for a long time which way the wind was blowing. A key moment was the arrival of Goldsmith. It seems that he spent several months walking around with raised eyebrows, asking lots of sticky questions. This sort of thing would not be a secret to the WH. So when the time came for Comey to deliver the formal rejection, I think this was not a surprise to the WH. And I think WH understood that Comey was speaking for DOJ, not just for Comey.

And as far as "isn't ready to accept," I just don't see how that adds up. It would make sense for there to be the following exchange between Gonzales and Comey (pre-hospital):

G: I know where you stand. But where does Ashcroft stand?
C: Same place I do.

And that should have been the end of it. There's only one good reason for Gonzales to neglect to ask this question: because he already knew the answer. And Gonzales didn't want to hear that answer, because hearing the answer would limit his ability to pretend that he really believed that Comey and Ashcroft weren't on the same page.

Comey was always ready and willing to state, truthfully, that he had Ashcroft behind him. You're suggesting that the WH may have heard this, but wasn't "ready to accept Comey's assurances." Trouble is, that's tantamount to saying that Comey's a stunningly audacious liar. Because that would be a huge lie on Comey's part, to claim that he had Ashcroft's support, if in fact Ashcroft did not support him.

It's not as if Ashcroft was totally incommunicado, spending 3 months on the dark side of the moon. Comey, of all people, would never tell such a lie, especially when the odds of exposing the lie quickly and easily are so high.

It's not just that we know Comey would never tell such a lie. It's that we know that the WH also knew this. The WH cannot claim with a straight face that they were actually concerned that Comey was the kind of liar your scenario contemplates. And if they were that shaky about him, they need to explain why they let him have the job (both jobs: DAG, and acting AG).

Also, if this is really the issue, then the full exchange should have looked like this:

G: I know where you stand. Where does Ashcroft stand?
C: Same place I do.
G: With all due respect, my credo is to trust but verify. So how about we drive down there now and the three of us can have a meeting.

Of course Gonzales did something very different. He didn't want Comey there watching. It's pretty obvious Gonzales was hoping that Ashcroft was swimming in morphine and ready to sign anything.

Also, even if you buy the reasoning behind "isn't ready to accept," that only gives Gonzales a reason to go down there and ask Ashcroft a question. It doesn't give Gonzales a reason to go down there and hand Ashcroft a legal document and a pen. Gonzales wasn't really there to get Ashcroft's opinion. He was there to get Ashcroft's signature. This was very wrong for two reasons that are related but separate: Ashcroft was drugged, and Ashcroft did not have the authority of AG. In the scenario where the three meet, and Ashcroft says "Comey, you're wrong," Gonzales would not then hand the form to Ashcroft. The proper step would be for Gonzales to hand the form to Comey.

The whole thing stinks, badly, no matter how you look at it.

The urgency is also curious. What's the hurry? If we have to wait a week or two for Ashcroft to be well enough to deal with the situation, that doesn't mean Bush has to stop bugging bad guys. It just means he's temporarily obliged to do it the old-fashioned way: legally. With warrants. Via the FISA court. He seemed very motivated to avoid this, which tends to create the impression that he knew the FISA court would react the same way Comey et al did.
 

jukeboxgrad:

You "think this was not a surprise to the WH" based on one person asking lots of sticky questions and raising his eyebrows? How do we even know that either Card or Gonzales knew OLC was reviewing this BEFORE Comey told them of his decision on Tuesday, March 9th? That's all we do know, from the record so far (your made up conversations nothwithstanding -- there are plenty of other reasonable explanations short of "Comey lied" -- for instance, "Comey misunderstood"). There are plenty of other reasonable explanations as well, like maybe Gonzales had classified intelligence about a planned terrorist attack for Friday of that week which we were about to stop listening to the terrorists on Thursday, and maybe intelligence that a certain FISA judge was already compromised by al Qaeda. Why do I feel like that 12th juror from the old black and white moview around here?
 

For the record, Marty, here's how Professor Kmiec responded to my e-mail enclosing your commentary:

"Thank you for taking the time to write me. I admire Mr. Comey's forthrightness, though I think it important that good men like him not feel the necessity to resign over interpretative disagreement. That said, there was no justification for the "hospital visit." As I indicated in the essay, I am "mystified" by the "ethically dubious" attempt to pursue a futile certification from a man properly recused and critically ill in the hospital.

My most serious reservation, however, is the undifferentiated likening of an honest, good faith dispute over the extent of the president's war powers to distortions of law we know as Watergate. The very prolixity of Mr. Lederman's rebuttal reveals perhaps that matters were not nearly as black and white as the president's opponents often contend. One of the now regrettable realities is that the dislike and distrust of Mr. Gonzales seems to have made it impossible to make legal argument without the political personalities obstructing constructive dialog. An administration that sought to strengthen presidential power has decimated it -- a sad fact for those of us who cherish the separation of powers as the surest
protection for civil liberty.

I am grateful for your interest in my thoughts, and your charitable effort to give me a different view of matters.

Respectfully,
Douglas Kmiec"
 

Please consider writing this up in op-ed form to submit to the Post.

The very substancelessness of Mr. Kmiec's response to you, as posted by Charles, suggests that matters are exactly as black and white as you describe.
 

Pointing out it is NOT "black and white" = it is "black and white"?! Welcome to Wonderland, Alice. By all means, submit your Mad Hatter screed to the Washington Post. I'm sure their libel lawyers will clear it for publication.
 

Refusing to address the substance of Marty's post, and instead pointing out, in moral relativist style, that, hey, anything might mean anything, and who really knows what "truth" is anyway, is a concession of how weak his arguments are.
 

The very prolixity of Mr. Lederman's rebuttal

Oh. My. God. What an intellectual fraud Kmiec turns out to be.

So, because Bugliosi writes 900 pages affirming the Warren Comm'n, the conspiracy theories must have something to 'em?
 

Oh, and when you write your Post op-ed, Prof. Leerman, be sure to remember these ringing words:

It is significant that presidential power in the Constitution is cast mostly in language of duty: to "take Care that the Laws be faithfully executed." As one presidential scholatr has written, "the duty to execute the laws "faithfully' means that American presidents may not --- whether by revocation, suspension, dispensation, inaction or otherwise --- refuse to honor and enforce satutes that were enacted with their consent or over their veto. Many scholars have agreed that the Take Care Clause was meant to deny the president a suspending or dispensing power [like that exercised, before American independence, by the Stuart Kings].

...The duty of the president is to faithfully execute, not invent, the law. yes, the extent of executive power can be debated, and yes, some political scientists complacently claim that all modern presidents have pressed or exceeded the boundaries of Article II authority. Yet those sworn to "taking care" of the execution of the law must be held to a high standard.

From Digby.

That was, of course, one Douglas Kmiec, from the book "The Rule of Law in the Wake of Clinton," featuring Kmiec and John Yoo and others waxing scholarly over President Clinton's legal overreachings.

The GOP stood strong in protecting the Constitution from fellatio. Violations of the Fourth Amendment and felony statutes... well, it's OK if you're a Republican.
 

Kmiec's portrayal of this as just a good-faith "interpetive disagreement" among lawyers simply does not hold up.

If that were the case, the proper resolution of such controversies is a court. If the administration -- then or now -- sought judicial review of the merits issues in good faith, I would respect that position.

But anyone who has followed the history of the domestic-surveillance controversy knows that the administration's entire strategy has been to avoid such judicial review at all costs.

That legal stonewalling continues to this day.
 

charles: "based on one person asking lots of sticky questions and raising his eyebrows"

I answered all your questions in another thread where you asked them.

"maybe intelligence that a certain FISA judge was already compromised by al Qaeda"

If we're truly concerned that the FISA court has been "compromised by al Qaeda," I think we should also consider the possibility that they've done the same to Laura, Barney, the Supremes and Power Line. Clearly, the only solution is immediate and permanent martial law.

You have a vivid imagination. Please exercise it and tell us your theory of why Mrs. Ashcroft made that phone call. Did she think she was ordering a pizza?
 

One last post for the weekend:

I am not bringing up martial law, but there ARE possible innocent explanations for Mrs. Ashcroft's call. Here's just one: the call from the White House came through the DoJ communications center located in the adjoining room, so Ashcroft's chief of staff was alerted to the President's call by someone there who asked Mrs. Ashcroft to call the chief of staff. She, not knowing the import of a Card / Gonzales visit, simply stated off-hand that she spoke with Bush who said they had something very important to discuss with her husband.

See? Nothing nefarious at all.
 

charles: "the call from the White House came through the DoJ communications center located in the adjoining room, so Ashcroft's chief of staff was alerted to the President's call by someone there who asked Mrs. Ashcroft to call the chief of staff."

Sorry, but that's completely incoherent. You seem to be saying Ayers (Ashcroft's chief of staff) was alerted "by someone there." Really? Comey testified that the call to Ayers came from Mrs. Ashcroft, not some generic "someone there."

The key question is this: what motivated her to pick up the phone and call Ayers? You haven't answered that question. Maybe you're claiming she made the call because "someone there " asked her to. But why would that "someone" not just call Ayers himself? Why would that someone instruct Mrs. Ashcroft to make such a call, and why would she have any interest in taking such orders from such a someone?

By the way, it's reasonable to suppose that "the call from the White House came through the DoJ communications center located in the adjoining room," but it's not reasonable to suppose that Bush spilled his guts to anyone but her. It's safe to assume that Bush did not get on the phone with some "someone" in the next room and say 'please put Mrs. Ashcroft on the phone because I want to tell her that I'm sending my homeboys over there in a few minutes; I thought it was only fair for me to mention this to you, in order to maximize the odds that Comey will hear about this and intercept them.'

If Bush had done that, that "someone" would probably have alerted Ayers and Comey before Bush and Mrs. Ashcroft were even done talking.

One more time: she called Ayers. Why? To discuss the weather? Your premise is that she didn't know "the import of a Card / Gonzales visit." So why was there any reason to make the phone call?

"Nothing nefarious"

Let us know if you're really claiming that there's "nothing nefarious" about handing a legal document and a pen to a drugged person. And this aside from the fact that at that moment, Ashcroft was not AG.
 

I am old fashioned enough not to know the etiquette of how best to respond in gratitude to so many readers who have taken the time to write here or to me personally, either agreeing or disagreeing with my commentary. Thank you for taking the time to share your thoughts.

First, let me reaffirm my description of Mr. Comey as an admirable fellow. I especially admire Mr. Comey's forthrightness and genuine concern for his professional responsibility; though I think it important that good men like him not feel the necessity to resign over interpretative disagreement. With much respect for and agreement with Professor Tamanaha's insights on the need to avoid opportunistic indeterminacy, I still believe the President's authority for the terrorist surveillance program is a closer question than he apparently does. In part, this is premised upon the OLC analysis or "white paper" that Mr. Gonzales and the Department have since relied upon in public testimony, but it is also because of older, unaddressed constitutional concerns raised by Griffen Bell with regard to application to FISA in war time.

Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection. Were the "exclusivity" language in FISA as absolute as Marty's reference to the criminal liability under section 1809 implies, mere tinkering with a program that, until recently, was not operating with a FISA warrant or some other as yet publicly unidentified approval or order of the FISA court, would not be capable of obviating the legitimate statutory concerns.

Mr. Comey was especially to be applauded for his unwillingness in testimony to transmute his disagreement with Mr. Gonzales over the scope of the President's authority to undertake war-time surveillance without the particular certification in issue into a claim of "illegality."

What outrages many was the seeming nefariousness of the hospital visit. Here, I did think Mr. Comey's testimony was "histrionic" -- that is, "of a theatrical quality." This does not mean I disbelieve his recounting of the scene, I just think the sirened arrival at the hospital, breathless rush up the stairs, and Ashcroft's rising from the bed, and so forth, was vividly re-told. It is fair to say, I believe, that Mr. Comey saw no justification for the "hospital visit." As I indicated in the essay, I too am "mystified" by what on the surface appears to be an "ethically dubious" attempt to pursue a futile certification from a man recused and critically ill in the hospital. (Please note, as one of your astute readers observed, this terminology was not aimed at Mr. Comey as Professor Lederman suggested. I apologize that my late night sentence construction misled Marty in this regard.). I speculate, but do not know, that Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation and he intended to ascertain whether Mr. Ashcroft concurred and was well enough to rescind his recusal in light of that possible concurrence. Marty's reference to section 2511(2)(a)(ii)does not alter my supposition; rather, it bolsters the view that the program could well have been interrupted in a fashion that those concerned with gaps in terrorist intercepts would find to be an unacceptable risk for the country.

Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior. Of course, to be open to that view one does need to see the FISA authority question as not, to pick a regrettable phrase employed elsewhere a "slam dunk" against such authority.

Unfortunately, one of the now regrettable realities is that, for some, the dislike and distrust of either the President or Mr. Gonzales or both has become so intense, that it is difficult to outline legal argument without partisanship obstructing constructive dialog. Goodness knows, I myself have been highly critical of unnecessarily gratuitous and indeterminate presidential power claims in signing statements and the closed-mindedness -- revealed only after profound damage has been done to Iraq and the moral footing of the United States -- but, in good faith, I am holding onto the belief that it is possible to defend the separation of powers, including its presidential dimensions, without being understood only as a Bush apologist.

One of your readers asked about my own work in OLC. It is somewhat off-topic, so I will not dwell on it, other than to note that my career in OLC ended shortly after I issued a legal opinion that interpreted the Rehabilitation Act and related statutes as protecting those with asymptomatic HIV against discrimination in the administration of government programs. At the time, more than one person in the White House and in OLC, itself, told me that was either a politically imprudent thing to do or was not obviously sustained by the legislative history of the Act. The first concern, political acceptability, should have no bearing on OLC's work. The latter consideration, whether I correctly grasped the textual meaning of Congress' intent was perhaps arguable, but if President Reagan or then- campaigning George H.W. Bush had disagreed with my exercise of legal judgment, I would have conceded their authority to override my conclusion without thinking I needed to resign. Of course, if the President seldom found my advice useful, that would be a different matter. As it was, the politics of elections allowed President-elect Bush to make his own unfettered choice of who should and should not be removed from a presidential appointment without explaining himself to me – but then, I may be wandering into another topic that involves Mr. Gonzales.

As always, I have benefitted greatly from the commentary on this site, and of course, I am most grateful for your charitable efforts to give me a different view of matters.

Respectfully,
Douglas Kmiec
 

I was not going to post again, but I wanted to thank Professor Kmiec for posting his side of the argument. Anyone concerned about "the seeming nefariousness of the hospital visit" needs to remember that may be only because the other side has not yet been explained. For instance, Ayers could have learned from several other sources that Bush was on the phone with Mrs. Ashcroft and asked that she call him back as soon as she got off the phone.
 

Dr. Kmiec,

Permit me to pick a few small bones with your recent comment:

You state: "Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection."

I share your confusion. How Mr. Comer could make his stand in Mr. Ashcroft's hospital room and subsequently acquiesce to the White House position weakens his performance before the Judiciary Committee. How Mr. Ashcroft could also later acquiesce also concerns me. I would like to hear from both of them on this matter.

As to your calling his performance as "histrionic", I can't agree. It was not "of a theatrical quality". It was clear and direct. He used a few rhetorical flourishes, but not enough to qualify as histrionic.

Skipping down a bit, I cannot accept your assertion that, "for some, the dislike and distrust of either the President or Mr. Gonzales or both has become so intense, that it is difficult to outline legal argument without partisanship obstructing constructive dialog." Not that such dislike and distrust doesn't exist. It certainly does. But you are the pot calling the kettle black, in light of your writings quoted by Matt at 10:39 AM above, and by Digby here.

I have not followed your career with excessive interest, but I have heard and read enough of your presentations to believe that you are loyal to your party above your nation. While I believe that Digby is harsh in calling you a "partisan whore", you, along with John Yoo and others, are definitely inclined to argue for the Republican Party before you will argue for the Constitution of the United States.

In conclusion, you and John Yoo are two of the reasons that I left behind my lifelong association with the Republican Party last year. I defend my nation before my party.

Regards,
Steve Jones
 

Steve:

What part of "I myself have been highly critical of unnecessarily gratuitous and indeterminate presidential power claims in signing statements and the closed-mindedness -- revealed only after profound damage has been done to Iraq and the moral footing of the United States -- but, in good faith, I am holding onto the belief that it is possible to defend the separation of powers, including its presidential dimensions, without being understood only as a Bush apologist" and the "first concern, political acceptability, should have no bearing on OLC's work" is defending party over nation?!
 

Or, this from the orginial Op Ed "Gonzales was obviously wrong to think that the signature of a man who recused his office because of illness would have any legal purchase, and why he would pursue it from an official under sedation -- if that is what was intended by his trip to the hospital -- is mystifying"? Kmiec says there was "no justification for the 'hospital visit'".

That may be true. However, according to Comey's own account of Ashcroft's reaction to Card and Gonzales, he arguably was not incapacitated.
 

Charles,

I don't admit to an encyclopedic knowledge of Dr. Kmiec's work, but what I have heard over my lifetime leads me to conclude that he is definitely loyal to his party above his nation. His occasional criticism is not enough to overcome my impression.

My limited exposure to your arguments in this thread leads me to conclude that you are even more loyal to your party than is Dr. Kmiec.

Though my impressions of the both of you is necessarily limited, I stand by them. Like the president, I'll go with my gut on this one.

Regards,
Steve Jones
 

As long as no one can rebut the direct quotes I provided as putting "party above our nation" that's fine with me. Have a good evening.
 

Goodnight, Charles. Sweet dreams.
 

Prof. Kmiec,

"I think it important that good men like him not feel the necessity to resign over interpretative disagreement"

What's your basis for claiming that all that was at issue here was an "interpretative disagreement?" We know almost nothing about the program that Comey rejected, or why he rejected it. Is your claim based on knowledge of facts that are not available to the rest of us?

Comey presumably had detailed information about the program he rejected. You presumably do not. His behavior is not the behavior of a person troubled by a mere "interpretative disagreement" (or "spat," as you called it in your column, which means "petty quarrel"). His behavior is the behavior of a person troubled by something larger than that. He was close to the facts (regarding the specific program he rejected). You're not, as far as I can tell. Therefore, how can you know what motivated him, and how can you know that what motivated him was merely an "interpretative disagreement?"

"I still believe the President's authority for the terrorist surveillance program is a closer question than he [Tamanaha] apparently does."

Same problem. Comey knew what Bush was doing for those first 30 months (pre-pancreatitis). The rest of us (including you, presumably) do not. Therefore what's your basis for making claims about the 'closeness' of the question? Your claim seems to be essentially this: I know it's legal, even though I don't know what "it" is.

"were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection … mere tinkering … would not be capable of obviating the legitimate statutory concerns."

You're raising a very interesting question, which is this: what was done to satisfy Comey's concerns? Was there just some "tinkering," or was the old program scrapped and a new one created in its place? The answer, obviously, is the latter. That's plain from Gonzales' testimony (2/6/06): "I do not believe that these DOJ officials that you're identifying had concerns about this program" (excerpt, full transcript). He also said "there has not been any serious disagreement about the program that the president has confirmed."

If the program "the president has confirmed" was the same program Comey had rejected, but simply with some "tinkering" applied to it (and this is essentially the scenario you promote in your writings), then Gonzales was plainly lying to claim that "there has not been any serious disagreement" about this program. Gonzales' statement can be considered truthful only if we understand that the old program was scrapped and replaced by a new one. And this is at odds with your claim that all that was at stake was a minor "interpretative disagreement."

If all that was at stake was a minor "interpretative disagreement," then a sober professional like Comey (along with Ashcroft, Goldsmith, Mueller and others, apparently) would not have threatened to resign. Likewise, if all that was at stake was a minor "interpretative disagreement," it would not have been necessary to scrap the old program and create a new one, which is apparently what was done, according to Gonzales' testimony.

"I speculate, but do not know, that Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation"

Are you claiming that the FISA court was expected to refuse to grant warrants to support this "on-going terrorist surveillance effort," even though an interruption "would seriously jeopardize the security of the nation?" Was there a concern that whatever offended Comey, Ashcroft, Goldsmith and Mueller would equally offend the FISA court? Are you suggesting that doing the things the old-fashioned way, with warrants, "would seriously jeopardize the security of the nation" even if it was done only for a few days, or long enough for Ashcroft to come out of his post-surgical sedation?

"he intended to ascertain whether Mr. Ashcroft concurred"

If Gonzales' problem was that he didn't know whether Comey had Ashcroft's support, then why not simply ask Comey? If Comey was considered trustworthy enough to be DAG, wouldn't he also be considered trustworthy enough to provide a straight answer to such a question?

"the program could well have been interrupted in a fashion that those concerned with gaps in terrorist intercepts would find to be an unacceptable risk for the country"

It's hard to imagine why anything would need to be "interrupted," unless the FISA court would refuse to grant warrants. Why would they do so? I guess the answer to that question would also answer this question: what was being done that was so egregious that it motivated Comey et al to threaten to head for the exits?

"it is difficult to outline legal argument without partisanship obstructing constructive dialog"

In my opinion, here's what "constructive dialog" would look like: serious answers to the questions I've raised (which I am not alone in raising, needless to say). Such answers are pointedly absent from your writings on this subject, and similar writings.
 

charles: "according to Comey's own account of Ashcroft's reaction to Card and Gonzales, he arguably was not incapacitated"

The fact that he had a short period of lucidity (and managed to express himself "in very strong terms") does not mean that he was "not incapacitated." What you're doing is the equivalent of a claiming that a drunk driver who drove down the highway at high speed and still managed to get home alive has proven that he's "not incapacitated."

Also, Ashcroft's impressive speech didn't happen until after Gonzales barged in and tried to hand Ashcroft a legal document and a pen. Therefore it can't be used as an excuse for Gonzales' patently unethical behavior.

Prior to that moment, here's how Ashcroft seemed, according to Comey: "pretty bad off."

"Ayers could have learned from several other sources that Bush was on the phone with Mrs. Ashcroft and asked that she call him back as soon as she got off the phone"

You're still making no sense. I think you are correct to surmise that Bush's call to Mrs. Ashcroft went through an FBI/DOJ communications technician in the next room. That person would have been told something like this: "Bush is calling for Mrs. Ashcroft; please put her on the line." But it's utterly implausible to suggest that the true purpose of the call would have been announced to this person (the technician). This person would have assumed that the purpose of the call was courtesy (and this would certainly not prompt them to alert Ayers). And Bush would have wanted it that way. The true purpose of the call would only have been revealed when Bush and Mrs. Ashcroft were finally connected. After that call, she called Ayers. Why?

Please pay attention to what Comey testified: "David Ayers [said] that he had gotten a call from Mrs. Ashcroft"

You're suggesting the truer narrative is this: 'Ayers asked her to call him, so she did.'

Not quite the same thing. Comey has had a long time to think about how he wanted to tell this story. He also has a reputation for being highly trustworthy. You don't get that kind of reputation by distorting reality in the way that you're suggesting he did. He swore to tell not just the truth but the whole truth, and we can assume that he did. If her call to Ayers was prompted by Ayers, rather than her, Comey would have said so. You're trying to run away from the plain meaning of his words, even though he's a highly credible witness.

"the other side has not yet been explained"

There's no time like the present. If there's someone out there who has another "side" to tell, what are they waiting for?

"As long as no one can rebut the direct quotes I provided"

Talk is cheap. The quotes you provided are essentially that.
 

This comment has been removed by the author.
 

No, what I've "proven" is that during the short period of lucidity, Ashcroft may have been capable of resuming his duties and over-ruling Comey -- exactly what Gonzales and Card were there for -- nonetheless, there's no evidence in the record that the legal document left its envelope or that
Gonzales tried to hand Ashcroft the pen. Since Comey is not a medical doctor (last I checked), his "pretty bad off" (or even "spent") was not the final word.

Lastly (setting aside the hearsay issue for a moment), "David Ayers [said] that he had gotten a call from Mrs. Ashcroft" easily fits within the following scenario:

A) Bush's call to Mrs. Ashcroft went through an FBI/DOJ communications technician in the next room.

B) After her conversation with the President, she innocently informs said technician (or even the security detail) that Card and Gonzales are coming over, so we'd better straighten things up, not realizing what that means.

C) Someone asks her to call Ayers immediately, which she does.

As I said, that just ONE possible explanation. If it would compromise national security, neither the President not Gonzales are obligated to tell their side of that story. Next question?
 

charles: "during the short period of lucidity, Ashcroft may have been capable of resuming his duties and over-ruling Comey -- exactly what Gonzales and Card were there for"

You imply, correctly, that "resuming his duties" would need to precede "over-ruling Comey." In other words, "over-ruling Comey" could not properly take place until there was a reversal of the step Ashcroft had taken, pre-surgery, to transfer his power to Comey.

In other words, the proper way for Gonzales to pursue the scenario you describe would be as follows: to start by taking steps to determine if Ashcroft was fit to resume his duties (and the first part of this would probably involve conversation with Ashcroft's physicians and wife), and then, if he was, to legally transfer authority from Comey back to Ashcroft. Only once this was done would it be proper to pursue the next step: ask Ashcroft to overrule Comey.

Trouble is, Gonzales didn't bother with what was proper. He glossed over the pesky little detail that he was addressing someone, who, at that moment, did not have the power of AG. He did not concern himself with that, and he paid no attention whatsoever to the person who actually did have the power of AG, who also happened to be in the room. None of this concerned Gonzales. Instead, he went straight to what was really on his mind. This is what Comey said:

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

Gonzales made no serious attempt to make sure Ashcroft was not incapacitated. He made no serious attempt to seek a proper transfer of authority from Comey back to Ashcroft. Instead, he explained how he was there for Ashcroft's signature to signify Ashcroft's "approval for a matter." And, as I have noted, Gonzales did this before, not after, Ashcroft had his "short period of lucidity."

Gonzales seemed perfectly prepared to accept a signature from someone who was sedated, and who did not possess, in that moment, the authority to offer that signature. Even Kmiec admits this was "ethically dubious," which is a charitable understatement.

By the way, one of many things you're neglecting to explain is why Gonzales didn't bother to ask Comey (before Gonzales visted the hospital) if Comey had Ashcroft's support. This is a very natural and obvious question for Gonzales to ask, but apparently it was never asked. This tends to create the impression that Gonzales already knew the answer. This also tends to create the impression that Gonzales specifically hoped to exploit Ashcroft's sedation to get Ashcroft to offer a signature that was at odds with what Ashcroft had already decided, before he got sick.

"there's no evidence in the record that the legal document left its envelope or that Gonzales tried to hand Ashcroft the pen"

Yes, it didn't get that far, because before Gonzales could get to that point, Ashcroft jumped down his throat. We see that you're easily impressed.

"Comey is not a medical doctor"

One does not need to be "a medical doctor" to understand that a feature of pancreatitis is excruciating pain. Likewise, one does not need to be "a medical doctor" to understand that someone who spent 90 minutes in an operating room the prior day, and was described post-surgery as being in "guarded" condition, and who is now in an intensive care unit, where his wife has banned all visitors and callers, is likely to be under heavy sedation. And one does not have to be a lawyer to understand that inviting such a person to sign a legal form, especially without first taking careful steps to make sure they're not incapacitated, is highly unethical.

You're correct, that "a medical doctor" would have been in a position to help determine whether or not Ashcroft was incapacitated. Guess what: such doctors were clearly in the vicinity, but there's no sign that Gonzales took the slightest interest in their views on this question.

You're defending the indefensible.

"Bush's call to Mrs. Ashcroft went through an FBI/DOJ communications technician in the next room"

Very likely.

"After her conversation with the President, she innocently informs said technician (or even the security detail) that Card and Gonzales are coming over, so we'd better straighten things up, not realizing what that means."

Certainly possible.

"Someone asks her to call Ayers immediately, which she does"

Sorry, this is the part that simply makes no sense. Yes, the "someone" might be thinking that Ayers should know, but that "someone" would simply make the call themseleves. There would be no reason for them not to. And there would be no reason for them to feel entitled to give orders or requests to Mrs. Ashcroft. She's busy taking care of a sick husband, and getting ready for important visitors. She would be offended and surprised to hear such a request. Her natural thought and response would be this: "Can't you see I'm busy? Why are you asking me to do that? Why on earth can't you just do that yourself?"

And the "someone" would not want to rely on her to make the call. She could refuse, or forget, or change her mind, or delay, or simply not follow through for a multitude of reasons. Why take chances? The "someone" would simply make the call directly. Nothing is gained by having her make the call instead. On the contrary.

In discussing a sitation like this, speculation is unavoidable, but it needs to be plausible. Yours is not.

"that just ONE possible explanation"

I assume the others you have on deck are even worse. That would explain why you're not bothering to mention them.

"If it would compromise national security, neither the President not Gonzales are obligated to tell their side of that story"

Now that we've heard your entertaining and highly implausible fantasy about why Mrs. Ashcroft called Ayers, we'd love to hear you explain how it could possibly "compromise national security" for the other side of the story to be heard. Simple question: did Comey "compromise national security" by telling his story? Of course not. He said essentially nothing about the classified program. It's obvious that Bush and Gonzales are free to approach the situation in the exact same manner.

By the way, did it "compromise national security" when Hayden and Gonzales conducted a 5,000-word press conference discussing "the legal issues surrounding the NSA authorization?"

How could a simple description of what happened in that hospital room "compromise national security," if Hayden's press conference did not?

By the way, how did it not "compromise national security" for Gonzales to be discussing a classified program in an unsecured location?
 

Charles, you've offered your speculation about why Mrs. Ashcroft called Ayers. Trouble is, your speculation is implausible. It would make roughly as much sense to speculate that he was moonlighting at a pizza shop and she was calling to order one.

Here's some speculation that I think is much more congruent with the facts that we know. I think Bush's conversation with Janet Ashcroft went something like this:

George: "Hi Janet. How's John."

Janet: "He's resting."

G: "I'm sorry I can't be there to wish him well, but instead I'm sending Gonzales and Card. They'll be there in a few minutes."

J: "I'm grateful for your concern, but I've banned all calls and visitors. The surgery was just yesterday. John is under heavy sedation. Please tell them to check with me in a few days."

G: "I guess I need to explain that there's another reason for their visit, aside from conveying my wishes for John's speedy recovery. There's some important government business that needs to be taken care of tonight."

J: "I don't understand. As you surely know, John's AG duties have been conveyed to Comey, who is now acting AG. In fact, Comey was here yesterday and assured me that he was handling all John's work, and that John should recover for as long as needed, because Comey was covering for him in every respect."

G: "I understand, but there's important government business that needs to be taken care of tonight, and I must insist on this meeting."

J: "I don't understand. Comey told me he was handling 100% of John's official duties. John told me the exact same thing, before his surgery. John is in no condition to be present for any sort of meeting. But if you insist on this meeting, shouldn't Comey or Ayers be here to help John? Will those folks be here too?"

G: "I'm out of time. Gonzales and Card will be there in a few minutes. Please give John my best wishes."

At this moment, Janet is pissed, and she smells some kind of a rat. So she calls Ayers.
 

I assume that none of us KNOW whether Mrs. Ashcroft was pissed or even if Gonzales and/or Card made any serious attempt to make sure Ashcroft was not incapacitated. But for my scenario, I assume that Comey HAD informed the White House of Ashcroft's support. Maybe they were trying to get that from the horse's mouth.

As for the national security issue, Bush could have said "Janet, I'm going to tell you something that's classified . . ." and that's why she allowed Card and Gonzales to come over. Once you have some DIRECT evidence that Mrs. Ashcroft objected to them coming over, let us know.
 

charles: "I assume that none of us KNOW whether Mrs. Ashcroft was pissed"

It's a reasonable inference from the facts that we "KNOW." And you've failed miserably at coming up with any remotely plausible alternate hypothesis.

"or even if Gonzales and/or Card made any serious attempt to make sure Ashcroft was not incapacitated"

Comey was in the room the entire time that Gonzales was in the room. Comey is a credible witness who swore to tell the whole truth and who presumably gave us a full account of what Gonzales did in the room. Here's what that account did not include: Gonzales making "any serious attempt to make sure Ashcroft was not incapacitated."

You're doing a great job of displaying your faith-based approach to reasoning, where you wish away any facts that cause you trouble, and wish into existence whatever facts you might happen to require.

"for my scenario, I assume that Comey HAD informed the White House of Ashcroft's support"

I think that's a reasonable assumption, and I share that assumption.

"Maybe they were trying to get that from the horse's mouth."

That can only mean one thing: that Comey wasn't considered trustworthy. Then why was he DAG? And not just that. As I've already explained, you're suggesting that a statement Comey made while sober was considered less trustworthy than a statement Ashcroft would make while high. That makes no sense.

Gonzales didn't care about Ashcroft's authentic beliefs and opinions. Ashcroft was not in a position to provide those, at that moment. Gonzales just cared about getting Ashcroft's signature.

"Once you have some DIRECT evidence that Mrs. Ashcroft objected to them coming over, let us know"

I already did. Comey said she banned "all" visitors. Maybe you need to review the meaning of the word.

You exhibit one of the great hallmarks of Bushism, which is stunningly selective skepticism. When it's convenient for you, you claim that credible sworn testimony isn't "DIRECT" enough. And then in your next breath, you speculate, with a straight face, that maybe the driving factor behind all this intrigue is that Al Qaeda has infiltrated the FISA court. Thanks for the laugh.
 

jukeboxgrad writes: Also, if this is really the issue, then the full exchange should have looked like this:

G: I know where you stand. Where does Ashcroft stand?
C: Same place I do.
G: With all due respect, my credo is to trust but verify. So how about we drive down there now and the three of us can have a meeting.


I agree that this is a problem for the narrative that I suggested. If the intentions of Alberto Gonzales and Andrew Card when visiting John Ashcroft were entirely benign, they should have included James Comey. I don't think it wholly destroys the narrative, but I do think it problematic. I'd be happy to explain my thoughts further if you are interested in continuing the conversation, but I suspect that I have returned to this thread too late.
 

jukeboxgrad:

Bottom line, neither of us KNOW that Mrs. Ashcroft was pissed. She HAD indeed banned all visitors, but she also allowed these visitors. Those are the facts.

I'm readily admitting that your scenario is possible but just giving you ONE other possible scenario. Whether you want to think it is more likely than yours is completely up to you. We already KNOW that you are the one who dismisses any contrary inferences as a "faith-based approach to reasoning." We'll have to agree to disagree for now.

QuiteAlarmed:

I actually think your narrative is more reasonable (at least until we get someone else who was there testify). If they didn't believe Comey was telling the truth in the first place, why on earth would they want him in the room when they asked Ashcroft?
 

Charles, I think you are doing an admirable job of explaining why the Senate Judiciary Committee needs to hear from Mrs. Ashcroft.
 

No doubt they want to hear from Mrs. Ashcroft, but I've already speculated (if not this this thread, another one) on several grounds why she should not testify.
 

this this = on this
 

quite: "If the intentions of Alberto Gonzales and Andrew Card when visiting John Ashcroft were entirely benign, they should have included James Comey."

Thanks for the reply.

Exactly. That's really all I was trying to say about your narrative. You just said it more clearly and concisely than I did.

By the way, you were wondering why conservative bloggers weren't promoting the idea that "Comey appeared to be taking advantage of John Ashcroft’s illness to force a major policy change." But they are indeed doing that. Going much further than that, actually. Maybe they got the idea from you (just kidding). See this:

I suspect that the arrival of Comey at the feckless Ashcroft's DoJ signalled the beginning of a coup attempt that would use DoJ to try to topple, or seriously cripple, the Administration

That entire piece was reposted approvingly at Power Line.

As the saying goes, you can't make this stuff up.

"the Senate Judiciary Committee needs to hear from Mrs. Ashcroft"

That would be nice, but who knows if it would ever happen. However, she is free to speak up outside of that hearing room, anytime she likes. If Comey has trampled on the truth, it's hard to understand why she has not spoken up to defend it. Silence truly looks like assent, in a situation like this.

There are also various other witnesses and near-witnesses, like Mueller and Ashcroft. They're also pointedly silent.

charles: "neither of us KNOW that Mrs. Ashcroft was pissed"

Yes, and neither of us "KNOW," for sure, via "DIRECT evidence," that the dark side of the moon isn't crawling with plastic flamingos. However, most of us earthlings realize that life requires making inferences, which is fine as long as they're reasonable. Bushist earthlings, though, have very elastic rules regarding this sort of thing.

"she also allowed these visitors"

Really? How loose is your definition of 'allow?' For all we know, her dialog with Bush included a snippet like this:

J: "I will not allow Gonzales and Card to visit."

G: "Too bad. You can't stop them. I'm the president and you're not."

Aside from making clear that visitors were banned, what else were you expecting her to do to signify that Gonzales' visit was not "allowed?" Stand in the doorway holding a shotgun? Leap across the room and tackle him as he entered?

There is an analogy here to the idea that a rape victim "allowed" herself to be raped. If I say to you "don't touch me there," and you do anyway, that's sexual assault. But of course you would say I "allowed" you to.

Janet Ashcroft banned all visitors. Gonzales visited anyway. The most natural inference in the world is that she would be pissed about this. A highly bizarre, counterfactual inference is to claim that this means she "allowed" him to visit.

"We already KNOW that you are the one who dismisses any contrary inferences"

I don't dismiss "contrary inferences" without explaining why they make no sense. I carefully explained why your fantasy about her phone call makes no sense. You, on the other hand, have explained almost nothing.

"If they didn't believe Comey was telling the truth in the first place, why on earth would they want him in the room when they asked Ashcroft?"

True, they wouldn't. But "if they didn't believe Comey was telling the truth in the first place," that means they consider him to be untrustworthy, which makes it impossible to understand why he was ever entrusted with the job of DAG. Or acting AG.

"several grounds why she should not testify"

I get around, and I don't recall running into those comments of yours. But it could be I'm behind on my reading.
 

There were several privileges that could possibly be asserted to Mrs. Ashcroft's testimony. I will try to find those posts for you. Until then, we'll have to agree to disagree about whether she was pissed or not.
 

Charles: In another thread, you tried to make a case for the Bush Administration to assert executive privilege over Mrs. Ashcroft's testimony. Our discussion revealed that your theory was based on the national security dicta in U.S. v. Nixon and on rank speculation that President Bush may have discussed classified information with her when he telephoned. I thought that you abandoned this speculative argument once I pointed out that, even if that were true, Mrs. Ashcroft could avoid discussing program details much the way that James Comey did in his testimony.

I am at a loss to think of any viable claim of privilege as to Mrs. Ashcroft's testimony over the factual questions raised in this thread (i.e., who called her, who did she call, why did she call, etc.).

She wouldn't need to appear for live testimony. A written statement for the record strikes me as the most sensible approach.
 

A "written statement for the record" will not be acceptable for the purposes of political theater. There were other privileges I mentioned as well, so I still have to look that up again for jukeboxgrad.
 

FINALLY found it -- here you go (from the "What Was the President's Role?" thread):

QuiteAlarmed:

Some of us take our duty under applicable privilege(s) seriously, so I doubt Ashcroft will reveal internal deliberations like that.

# posted by Charles : 2:07 PM

. . .

John Ashcroft was not the Attorney General at that time. The executive privilege covers only communications of high government officials and those who assist them in the performance of their duties. Neither Mr. Ashcroft nor his wife fell within that category at the time of this incident.

(Even if that were not the case, the executive privilege is not absolute.)

# posted by QuiteAlarmed : 2:23 PM

. . .

QuiteAlarmed:

Neither Mr. nor Mrs. Ashcroft have to be the Attorney General for executive privilege to apply. You do realize that this topic implicates the national security dicta in US v. Nixon, right? If executive privilege applies to PRIVATE oil company executives, then I think we can find some way to cover the Ashcrofts (maybe there's a spousal communication privilege as well).

# posted by Charles : 3:36 PM

. . . Why do you want them not to testify? ;-)

Cheers,

# posted by Arne Langsetmo : 3:44 PM

Because, arne, FUTURE Presidents will be ill-advised if there is no executive privilege.

# posted by Charles : 3:46 PM

. . .

So asking Mrs. Ashcroft whether President Bush telephoned her at the hospital implicates a sensitive national security secret.

Ok. How could I have forgotten our national security interest in protecting the President from Congressional oversight?

I can't begin to tell you how readily I would welcome that fact pattern as a test case for the U.S. v. Nixon dicta.

# posted by QuiteAlarmed : 10:09 AM

. . . I never said there's a national security interest in protecting the President from Congressional oversight. Your new "hero" Comey, however, declined to testify on both national security AND executive privilege grounds -- that was O.K. for Schumer -- why not you? As for Mrs. Ashcroft, I'm more concerned about questions directed at the CONTENT of what Bush had to tell her to convince her to grant access to her husband.

# posted by Charles : 12:00 PM

. . . Mr. and Mrs. Ashcroft’s testimony would have a two-fold purpose. The first is to confirm the account already provided by James Comey. No one questions his credibility, but Tony Snow has suggested that the Administration has a different version of the events. The second is to answer the question posed by this thread: What was the President’s Role? Both purposes can be accomplished without discussion of program details (as Comey did in his testimony). Unless one asserts a national security interest in protecting the President from Congressional oversight (an assertion you thankfully disavow), I see no colorable argument for claiming executing privilege to bar this testimony.

While “hero” is overly strong, I agree that James Comey acquitted himself most admirably. He behaved in the way that I once, idealistically, trusted that all high government officials, save the corrupt, would behave, regardless of party affiliation. I can fashion no greater indictment of this Administration than to observe that it cannot abide the company of those who cleave to their integrity.

# posted by QuiteAlarmed : 1:24 PM

I will trust the President's judgment on that. For instance, if the President called Mrs. Ashcroft and said: "I'm going to reveal the following classified details to you so you can make up your own mind how important it is that we speak to John tonight . . ." then the President's Role is not only covered under Executive Privilege but also classified information. BTW: I believe Congressional "oversight" of the President HIMSELF is very limited.

# posted by Charles : 1:41 PM

. . .

Charles: "I will trust the President's judgment on that."

Ha

HaHa

Hahahahahahahahahahahahahahahaha!
Hahahaahhahahahahahahahahahahahaha!
Hahahahahaha!
Ha!

Oh, I'm laughing so hard, I've started crying! Thank you Charles! Robin Williams couldn't have done better. I don't need to go see Shrek 3 this weekend after that.

Hahahahahahahahahaha.

Oh no, I think I pulled something.

# posted by RandomSequence : 6:21 PM

Charles,

If someone knowingly reveals something that would normally be a privileged communication in the presence of someone who would negate that privilege (which is why attorneys will not discuss a case with their client in an elevator with others present), then the privilege is considered lost.

Mrs. Ashcroft was not confirmed by the Senate as a Presidential appointment. How in any stretch of a twisted imagination (as you have showed elsewhere) can you consider her part of a privileged conversation?

# posted by Fraud Guy : 11:40 PM

The same way oil executives (not confirmed by the Senate as Presidential appointments) would be -- see, e.g. Walker v. Cheney. Executive privilege (especially involving national security) is a different animal from attorney-client privilege.

# posted by Charles : 10:36 AM
 

charles: "I still have to look that up again for jukeboxgrad"

Thanks, it was generous of you to take the time to do that.

I see you providing (or attempting to provide) an answer to the following question: if Janet wanted to keep her mouth shut, what excuse could she use?

But unless I still missed it somewhere, I don't see an answer to the following question: if Janet had any information that was contrary to what we learned from Comey, why would she choose to keep her mouth shut?

I think the latter is the question I've been asking.
 

Because, she was given classified information that would put American lives in jeopardy if revealed?
 

charles: "Because, she was given classified information that would put American lives in jeopardy if revealed?"

If Comey said something incorrect, Janet should be able to correct him (either under oath or in the press) without revealing "classified information that would put American lives in jeopardy if revealed." Unless you're claiming that Comey's narrative itself revealed "classified information" and "put American lives in jeopardy." Are you claiming it did?

Imagine Janet making this statement: "Comey has mischaracterized the situation. I happily allowed Gonzales to visit. My call to Ayers had nothing to do with me being pissed, or me wanting someone like Comey to be there to protect John from Alberto."

This statement essentially reflects your theory of where she stands. If she issued such a statement, how would that "put American lives in jeopardy?"

On the contrary, she is putting "American lives in jeopardy" by holding back, and not defending the truth. On Planet Charles, Janet is sitting on her hands and letting a snake like Comey get away with undermining the CinC during wartime. Comey is emboldening the enemy. Therefore, Janet's silence is what's putting "American lives in jeopardy."
 

Damned if she does, damned if she doesn't.
 

This could trigger off topic, this article brings to mind a thought that I had repeatedly about the legal profession.

When we play the runescape, we need the RS Gold to help us become more powerful, as the same, we also need the cheap tera gold to spend less money to get the gold. When we feel tired we need the game to relax, we need the eden gold to play the game and we did this just for fun and don’t become addiction about it!
 

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