Deputy Attorney General James Comey's testimony: George W. Bush "engage[d] in conduct that the Department of Justice had said had no legal basis"

SCHUMER: And why did you decide to resign?

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

Via Truthdig, this video from YouTube shows former Deputy Attorney General James Comey's testimony to the U.S. Congress this week about this story (summarized on Wikipedia):

In early January 2006, the New York Times, as part of their investigation into alleged domestic surveillance by the National Security Agency, reported that Comey, who was Acting Attorney General during the March 2004 surgical hospitalization of John Ashcroft, refused to "certify" central aspects of the NSA program at that time. The certification was required under existing White House procedures to continue the program. After Comey's refusal, the newspaper reported, Andrew H. Card Jr., White House Chief of Staff, and Alberto R. Gonzales, then White House counsel and now Attorney General, made an emergency visit to the George Washington University Hospital, to attempt to win approval directly from Ashcroft for the program. Comey confirmed these events took place (but declined to confirm the specific program) in testimony to the Senate Judiciary Committee on 16 May 2007.

Comey also confirmed that Attorney General Ashcroft forcefully refused to certify the program and that the White House proceeded to go ahead with the program anyway, thus giving rise to what Comey described as "engag[ing] in conduct that the Department of Justice had said had no legal basis". He also testified that he, his chief of staff, Ashcroft, Ashcroft's chief of staff, and FBI director Robert Mueller all threatened to resign over President Bush's defiance of the law.

The transcript of Comey's testimony is at Think Progress.

This article from Slate has the story and its implications for the "unitary executive theory" -- in other words, the dictatorship our country has become in the endless war Bush claims we are engaged in:

Nixon Rides Again
It's only illegal when the president agrees it's illegal.
By Dahlia Lithwick
May 17, 2007

It took a day, but the newspapers finally caught up to the bloggers this morning in recognizing the real shocker in former Deputy Attorney General James Comey's dramatic congressional testimony Tuesday. It's not just the Grim Reaper tale of Alberto Gonzales and Andy Card double-teaming a critically ill John Ashcroft in his hospital bed. The real issue, as Orin Kerr, Glenn Greenwald, Marty Lederman, The Anonymous Liberal, and Paul Kiel started explaining Wednesday, is much bigger: The story isn't who picked on a sick guy or even who did or didn't break laws. The story is who gets to decide what's legal. And the president's now-familiar claim, a la Richard Nixon, is that it's never illegal when he does it.

We now know that in 2004 Gonzales and Andy Card raced to the hospital to try to get a very sick John Ashcroft to certify the legality of the president's secret NSA surveillance program—going over the head of Comey, the acting attorney general while Ashcroft was ill. When Ashcroft refused to override Comey, the White House reauthorized the program without DoJ certification. The question now is whether in so doing, the White House did something illegal, improper, neither, or both.

The Wall Street Journal today dismisses this story as a "full length docudrama." Quoting selectively from Arlen Specter's long colloquy with Comey, in which Comey conceded that "the Justice Department's certification ... was not [required] as far as I know," the Journal concludes that "nothing illegal was done, [Comey] was never threatened by White House officials, and the President told him to do what he felt was right." No laws broken. Nothing to see here, America. Move along.

But those of you who actually read the transcript know that Comey never conceded that DoJ certification of the classified program was legally unnecessary. He seems merely to have said that the administration may not have believed it was legally necessary. Indeed, when Specter asked whether "the certification by the Department of Justice as to legality was indispensable as a matter of law," Comey said he believed that it was. He said, twice, and most carefully, that while he was not a presidential scholar, there were those who argued "that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal." Comey added that he disagreed with that conclusion.

There is a normative legal argument about whether the president should need any permission to do anything in wartime. The bloggers above agree that this bare assertion—that the president's Article II powers allow him to do what needs doing—appears to be the basis for the work of John Yoo, the Office of Legal Counsel lawyer who laid much of the legal groundwork for torture and other forms of unchecked executive power before 2004. That may, in turn, have been the basis for the apparently rigorous re-evaluation of Yoo's legal work by the new head of OLC, Jack Goldsmith. (Disclosure: Goldsmith and I have co-authored here in Slate.)

But regardless of what the Journal claims, Comey was not this week endorsing the assertion that whatever the president says goes. He conceded that the attorney general's certification was not required by statute or by regulation, but it was "the practice in this particular [surveillance] program ... there was a signature line for that." And he added that the AG's certification had never yet been disregarded.

Specter hardly wrung from Comey the concession that the White House decision to reauthorize its NSA program over DoJ objections was "legal." What Comey did grant was the proposition that it could have been legal if you accepted that what the White House does is legal by definition. The administration's decision to push forward with the program anyway meant that Comey (and DoJ) had no role to play at all, and he found that untenable, if not expressly illegal.

It's impossible to draw neat lines around which elements of the mushrooming U.S. attorneys scandal violate the law and which are encompassed in Bush's larger worldview that life happens at the pleasure of the president. But these discussions raise the bigger question: How can the president ever break a law, so long as he insists he is the law? And how can the rest of us know if he's broken a law, if we've absolutely no idea what he's been doing?

The psychodrama in Ashcroft's hospital room boils down to a rift between the people at Justice (Ashcroft, Comey, and Goldsmith) who believed even the president can cross a line into lawless behavior and those who simply don't. Glenn Greenwald contends that "the President consciously and deliberately violated the law and committed multiple felonies by eavesdropping on Americans." The Wall Street Journal insists that no law was broken because the surveillance program put the president above the law. Greenwald believes in an immutable legal architecture that binds even the president. The White House contends the president answers to nobody. There is no midpoint between these two arguments. The president is either above the law or he isn't.

As it turns out, almost everyone who espoused the latter view has fled DoJ. The most underreported moment at Comey's hearing this week was not, as the Journal claims, the Comey-Specter colloquy, but Sen. Chuck Schumer's Freudian effort to swear Comey back into office when he was supposed to be administering an oath. As Ben Wittes puts it today, "the bad guys won."

But that's not quite right. The bad guys were winning for a while because they picked the teams, set the rules, sidelined the referees, and turned off all the lights in the stadium. Congress has some work to do. It needs to drill down on what this mystery eavesdropping program was (and which worse mystery eavesdropping program it replaced) and to get to the bottom of the Yoo memos and what else they've authorized. Let's call the Comey testimony the halftime show. With the refs in and the lights finally on, this might just prove to be an interesting game after all.

Dahlia Lithwick is a Slate senior editor.