an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Who Will Play Gonzales and Card and Addington in the Hollywood Movie of the Comey Testimony?
Really, if Comey has not already sold the screenplay, he's missing out on a big payday. If you haven't already done so, READ THE TRANSCRIPT. [This might tell you all you need to know: Dahlia Lithwick gives it her usual sharp-honed, tongue-partly-in-cheek treatment . . . and you can't tell which parts are exaggerated for comic effect and which are true to life!]
Here's the scene: Ashcroft has fallen ill with a severe case of gallstone pancreatitis. He has handed over the reins of the Department to Comey -- Comey's the Acting AG. On March 9th, the same day that Ashcroft has his gall bladder removed, Comey and Goldsmith tell the White House that the NSA program is unlawful and that they won't sign off on it. The President himself, of course, could overrule DOJ on the legal question -- but apparently is unwilling to do so, both because the subsequent resignation of the AG, DAG, and FBI Director would tip off the public that the President trusted David Addington's jurisprudence more than he trusted the folks at DOJ, and because perhaps the NSA and the phone companies would not look too kindly on the idea of acting in accord with the President's views when even John Ashcroft did not agree.
So the next evening, the White House -- probably the President himself, by Comey's account -- calls Mrs. Ashcroft, and implores her to allow Alberto Gonzales and Andy Card to come to GW Hospital to persuade John Ashcroft, in his weakened and drug-induced post-operative state, to sign off on the program, i.e., to overrule Comey even though Comey is the Acting AG. Comey gets wind of the impending meeting at the hospital, and he rushes to a waiitng vehicle to get to the hospital -- using emergency equipment! -- before the White House Chief of Staff and Counsel get there. Comey (literally) runs up the hospital stairs to Ashcroft's room. While Comey is waiting for the two high-ranking White House officials to arrive, he calls the Director of the FBI for support, and then the FBI Director speaks to the AG's security detail and -- this is the best part -- "instructed the FBI agents present not to allow me [Comey] to be removed from the room under any circumstances"!
Yes, if you think this sounds familiar, it is -- it eerily resembles the scene in which Michael Corrleone "protects" his father at the hospital in The Godfather. With Jack Goldsmith as Enzo the Baker, and Alberto Gonzales as McCluskey the crooked cop. (The President, of course, is Sollozzo. Comey would be Michael, except that he's a good 14 inches taller than Al Pacino . . . . Oh, and then there's the bit about how Comey refuses to meet with Andy Card -- the President's Chief of Staff! -- at the White House without an unbiased third party witness (SG Ted Olson -- a/k/a Tom Hagen).)
And this is how the law is settled these days in the Executive branch of the greatest democracy in the world . . . .
Nice catch on the Godfather scene. Michael Corleone (Comey?) got his revenge (but it was just business, not personal) on McCloskey and Solozzo a little later. Was today Comey's revenge? It wasn't much less dramatic!