Putting the Pieces Together

Marty Lederman

At least as Comey relates it, this affair is not one of mere bad judgment or over-aggressiveness. It is a story of profound misconduct on Gonzales's part that, at least in my judgment, borders on the impeachable. Put bluntly, faced with a Justice Department determination that the NSA's program contained prohibitive legal problems, the White House decided to go ahead with it anyway. In pursuit of this goal, Gonzales did two things that both seem unforgivable: He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man and to use those powers to approve a program the department deemed unlawful. Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But it constitutes a profound affront to the institutional role of the Justice Department as it has developed. The Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law.

The must-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary. Few attorneys general get tested as Ashcroft did that night in 2004. One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law. More broadly, the Justice Department seems to have performed admirably across the board--from the OLC having taken its job seriously, to the willingness on the part of the department brass and Mueller to lose their jobs to defend the department's ability to determine the law for the executive branch. Had the story ended with Comey's victory, it would have been an ugly crisis with a happy ending.

But it didn't end there. Less than a year later, Gonzales replaced Ashcroft as Comey's boss. Within a year of that, none of the four people who had stood up to Gonzales in that hospital room remained in government. Goldsmith was already gone. Comey stayed on for a few months and then joined the private sector. He testified that Philbin, who returned to private practice in 2005, was "blocked from a promotion, I believed, as a result of this particular matter." In the long run, in other words, the bad guys won. The ranks of people willing to say no to the White House thinned. And without that strong cadre in the political echelons, the department has suffered terribly. That is what's behind the U.S. attorney scandal and the horrid allegations that career appointees were subjected to political litmus tests.