Thursday, May 17, 2007

Putting the Pieces Together

Marty Lederman

James Comey's testimony on Tuesday ostensibly was about two distinct topics -- (i) the remarkable hospital-bed drama in March 2004 and the President's subsequent lawbreaking; and (ii) the more recent U.S. Attorney/DOJ-politicization scandal.

But there is an important connection -- a juxtaposition, in truth -- between them. As Justice Stevens sharply remarked at both the beginning and the end of one of his best dissents, "this case has illuminated the character of an institution." Ben Wittes nails it:
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.


This leads to a sad premise as well; that Bush's nomination of Gonzales as AG may well have been solely because Gonzales could get Bush his NSA warrantless wiretapping program/s. The right tool at the right time.

It also ties into President Bush's unwavering support for Alberto Gonzales. Several mainstream news articles have suggested that the perceived difficulty of getting a new Attorney General confirmed is one of the reasons for the President's continued support. In other words, this Senate won't confirm another pliable tool to replace Gonzales.

Mark Field or Professor Lederman,

Here is an example of what I was talking about in an earlier thread.

Professor Lederman writes, "the remarkable hospital-bed drama in March 2004 and the President's subsequent lawbreaking"

This claim is trying me nuts because it keeps popping up and without, from what I can tell, any support.

The "subsequent lawbreaking" can only mean when the President re-authorized the program. Nevertheless, there is nothing to suggest that the re-authorization was illegal. Perhaps the entire program was illegal, but that isn't the specific assertion by Professor Lederman here.

Illegal is constantly banded about, but closer inspection only reveals at most unsavory behavior.

I strongly suspect it's more than just a juxtaposition. I strongly suspect that part of the initial motivation behind the USA purge was the aggrieved perception on the part of some in the White House that the DoJ was yet another defiant bureaucracy that had to be brought to heel. And Comey was Exhibit A.

Especially since he'd not only done this and the other pushbacks against the Yoo mess; he'd appointed Fitzgerald, and done it in the way that he did.

Someone: The "subsequent lawbreaking" can only mean when the President re-authorized the program.

Technically, you are correct that Professor Lederman should not have used the word "subsequent." The program was illegal when initially authorized, not just when it was re-authorized. Professor Lederman, however, graciously allowed the President to rely upon the earlier advice of legal counsel, regardless of how poor that advice may have been. I suspect that most courts, and much of the American public, would be similarly gracious. But technically, you are correct: it was all Presidential lawbreaking, not just subsequent lawbreaking.

The "subsequent lawbreaking" can only mean when the President re-authorized the program. Nevertheless, there is nothing to suggest that the re-authorization was illegal. Perhaps the entire program was illegal, but that isn't the specific assertion by Professor Lederman here.

I think quitealarmed got it basically right. While I obviously can't speak for Prof. Lederman, I think the reasoning goes like this:

Wiretapping without a warrant never has been legal. That is, the justifications offered by DOJ do not amount to an exception to FISA that any court would accept.

However, Prof. Lederman has always been willing to accept OLC advice as a defense (I'm not sure it is). Thus, when OLC retracted its earlier approval, the "subsequent behavior" of the President in authorizing continuing taps amounted to "lawbreaking". Under his theory, I assume that the later changes in the program which allowed OLC to approve it would mean that the President should from that point forward no longer be considered a "lawbreaker".

When you look at the timeline of these events (as pulled together by a reader over at TPM Muckraker), the defense mentioned by Mark Field above may be unavailable for less than a full day of the program's implementation (i.e., less than a full day of the President being a "lawbreaker"). The President reauthorized the program without DOJ signing off on May 11, 2004. The morning of the next day, the President met with James Comey and agreed to revise the program to address DOJ concerns (to avoid mass resignations). While the program was being revised, the White House suspended parts of the program. See the NY Times (reporting that "about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.") Assuming that all parts of the program that DOJ found objectionable were suspended, then the White House would have been followed OLC advice for all but the time period between the reauthorization and the suspension (which appears to be less than a day).

Mark and Alarmed,

Thanks, you are correct, Prof. Lederman's comment only makes sense in the context of the qualified immunity issue.


In hindsight, then, too bad for Bush that he didn't simply fire all 94 U.S. Attorneys after his re-election, huh?

Did anyone else get a sense that Specter was blindsided during a hearing on U.S. Attorneys with this re-hashed hospital incident? Especially when he was pleading for any GOP Senators watching to get in there quick? At least Schumer/Comey didn't make the Nightly News.

Because it's typical for an administration, after replacing all USA's after their first electoral victory, to then replace them all again. Puh-lease.

And this is my other favorite: all this is old news, therefore, it isn't relevant. Riiiight. Good work Charles, you've hit most of the major talking points. I will give you points for some originality with the suggestion that Bush should've replaced all the USA's that he appointed in 2004...

I hit most the "talking points" by coming up with an "original" one? That's somewhere between Lewis Caroll and George Orwell.

Wouldn't the "talking points" be that Clinton not only replaced all holdover U.S. Attorneys after his election, but also MORE than eight of those very same replacements after his re-election? You didn't think that was a problem back then, did you?

It has been well established through a recent analysis of turnover amongst USA's that the recent firings are far far far outside the norm. But you get another notch for the "but Clinton" talking point.

I thought you were synthesizing talking points with the little twist about replacing all the previously appointed USA's, which is why I gave you credit for some original thought. Seems I was mistaken...


How many, and when? All at once, or over time? Were they replaced when they chose to leave the office, or were they pushed out?

Cites, please. One Bart per blog is more than enough.

I thought it was an "original" thought, but that's just me probably. I have read the Congressional Research Service (if that's what you are referring to "recent analysis") and note that Clinton fired at least two U.S. Attorneys. There were dozens of those later replacements -- not all at once -- and I agree that we don't know (because those are excluded from the CRS report and Congress never investigated) how many more were "pushed out" etc.

In hindsight, then, too bad for Bush that he didn't simply fire all 94 U.S. Attorneys after his re-election, huh?

That was Rove's initial thought, wasn't it?

In hindsight, though, it's hard to know how it would have played out, and they probably made a sensible decision at the time that it was unwise to proceed that way.

Just think of how it would have played out even with regard to the limited matter of the investigation Fitzgerald was conducting.

JDL - at this point, the thought that Rove would direct DoJ to fire all 94 USA's just so he could get Fitzgerald off his back would make me bat an eye.

I will agree "poltically" the best thing would have been to fire all U.S. Attorneys, including Fitzgerald -- business as usual, perfectly legal -- but make a big show about retaining Fitzgerald as the Special Counsel on the Valerie Plame matter to "speed up" that investigation PRIOR to the election.



But I take it that part of the point would have been to provide cover for getting rid of Fitzgerald, so it would hardly do to reappoint him, even if that could have been done. What's more, this hardly would have been business as usual, even if in some sense it were legal (though this is more confirmation of my view that when they talked about being honor and dignity back to the White House, they meant, "Not indicted!" Anything short of that is perfectly fine, just business as usual.).

And what election are you talking about? 2006? Surely you don't think Fitzgerald's investigation had an impact different from if he'd been totally done before that election, do you? Or at least a different and better impact on the Republicans? I take it they were pleased that Libby's trial got pushed back after the election.

And as for 2004, it was part of the goal for Rove et al to ensure that information from the investigation did not come out before the 2004 election.


I am talking about replacing all U.S. Attorneys at the beginning of Bush's second term (2005). Of course, it should go without saying, no one in the White House would have wanted to do anything to speedy up Libby's indictment prior to 2005. The election I was referring to was indeed the 2006 mid-term.

Gee Ashcroft actually showed some reguard for the rule of law .What a hero.How sad is that.
. . . In the long run, in other words, the bad guys won. The ranks of people willing to say no to the White House thinned . . .
- - Benjamin Wittes @ TNR online

Ben Wittes seems to have a new attitude. The term, "bad guys" implies some kind of actual opinion about actual wrongdoing.
Monday, February 05, 2007
How the super-smart, insider experts opine
The New Republic has published an article by Benjamin Wittes, a "Guest Scholar" at the Brookings Institution, which argues that the issues surrounding the Bush administration's warrantless eavesdropping activities are so complex and sophisticated, and raise such grave matters of national security, that not even the most brilliant and well-informed insider-experts -- such as Wittes -- could possibly form an opinion about whether the Bush administration did anything wrong. Only blind, ignorant partisans would claim that President Bush acted wrongfully or illegally here . . .
- - Glenn Greenwald

Also note that Ben Wittes is a member of the WaPo editorial board.
The Washington Post
Editorial Board
Fred Hiatt, Editorial Page Editor
[ . . . ]
Benjamin Wittes, Editorial Writer

There might be some good things to say of Ashcroft and Comey both, but let's not forget.

Each signed off on a panoply of democracy busting moves, not the least of which was allowing the clearly illegal NSA program to exist for 2 and half years in Ashcroft's case (without bothering to adequately check into it). And Comey made a few changes that in his mind brought the program into a comfortable zone for him legally, but even so, the program is radical and to this point the legality has yet to be properly challenged.

Neither deserves hero status.

How about I agree with you on Comey?

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