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.

Alberto Gonzales: "dull-witted apparatchik", liar, or both?

The New York Times has a news analysis on Attorney General Alberto Gonzales's testimony to the Senate. Most articles in the mainstream press studiously avoid the core question of the case: Why were the 8 prosecutors fired? This editorial suggests that the answer is the same as the one given in a previous post I made, that these prosecutors refused to play ball with the White House's "voter fraud" campaign to reduce voting among poor and minority citizens.

Gonzales v. Gonzales
Editorial - The New York Times
April 20, 2007

If Attorney General Alberto Gonzales had gone to the Senate yesterday to convince the world that he ought to be fired, it’s hard to imagine how he could have done a better job, short of simply admitting the obvious: that the firing of eight United States attorneys was a partisan purge.

Mr. Gonzales came across as a dull-witted apparatchik incapable of running one of the most important departments in the executive branch.

He had no trouble remembering complaints from his bosses and Republican lawmakers about federal prosecutors who were not playing ball with the Republican Party’s efforts to drum up election fraud charges against Democratic politicians and Democratic voters. But he had no idea whether any of the 93 United States attorneys working for him — let alone the ones he fired — were doing a good job prosecuting real crimes.

He delegated responsibility for purging their ranks to an inexperienced and incompetent assistant who, if that’s possible, was even more of a plodding apparatchik. Mr. Gonzales failed to create the most rudimentary standards for judging the prosecutors’ work, except for political fealty. And when it came time to explain his inept decision making to the public, he gave a false account that was instantly and repeatedly contradicted by sworn testimony.

Even the most loyal Republicans on the Senate Judiciary Committee found it impossible to throw Mr. Gonzales a lifeline. The best Orrin Hatch of Utah could do was to mutter that “I think that you’ll agree that this was poorly handled” and to suggest that Mr. Gonzales should just be forgiven. Senator Sam Brownback led Mr. Gonzales through the names of the fired attorneys, evidently hoping he would offer cogent reasons for their dismissal.

Some of his answers were merely laughable. Mr. Gonzales said one prosecutor deserved to be fired because he wrote a letter that annoyed the deputy attorney general. Another prosecutor had the gall to ask Mr. Gonzales to reconsider a decision to seek the death penalty. (Mr. Gonzales, of course, is famous for never reconsidering a death penalty case, no matter how powerful the arguments are.)

Mr. Gonzales criticized other fired prosecutors for “poor management,” for losing the confidence of career prosecutors and for “not having total control of the office.” With those criticisms, Mr. Gonzales was really describing his own record: he has been a poor manager who has had no control over his department and has lost the confidence of his professional staff and all Americans.

Mr. Gonzales was even unable to say who compiled the list of federal attorneys slated for firing. The man he appointed to conduct the purge, Kyle Sampson, said he had not created the list. The former head of the office that supervises the federal prosecutors, Michael Battle, said he didn’t do it, as did William Mercer, the acting associate attorney general.

Mr. Gonzales said he did not know why the eight had been on the list when it was given to him, that it had not been accompanied by any written analysis and that he had just assumed it reflected a consensus of the senior leaders of his department. At one point, Mr. Gonzales even claimed that he could not remember how the Justice Department had come to submit an amendment to the Patriot Act that allowed him to fire United States attorneys and replace them without Senate confirmation. The Senate voted to revoke that power after the current scandal broke.

At the end of the day, we were left wondering why the nation’s chief law-enforcement officer would paint himself as a bumbling fool. Perhaps it’s because the alternative is that he is not telling the truth. There is strong evidence that this purge was directed from the White House, and that Karl Rove, Mr. Bush’s top political adviser, and Harriet Miers, the former White House counsel, were deeply involved.

Yesterday, Mr. Gonzales admitted that he had not been surprised by five of the names on the list because he had heard complaints about them — from Republican senators and Mr. Rove.

In another telling moment, Mr. Gonzales was asked when he had lost confidence in David Iglesias, who was fired as federal prosecutor in New Mexico. His answer was an inadvertent slip of truth.

“Mr. Iglesias lost the confidence of Senator Domenici, as I recall, in the fall of 2005,” Mr. Gonzales said. It was Senator Pete Domenici of New Mexico, of course, who made a wildly inappropriate phone call to Mr. Iglesias in 2006, not 2005, to ask whether charges would be filed before the election in a corruption inquiry focused on Democrats. When Mr. Iglesias said he did not think so, Mr. Domenici hung up and complained to the White House. Shortly after, Mr. Iglesias’s name was added to the firing list.

We don’t yet know whether Mr. Gonzales is merely so incompetent that he should be fired immediately, or whether he is covering something up.

But if we believe the testimony that neither he nor any other senior Justice Department official was calling the shots on the purge, then the public needs to know who was. That is why the Judiciary Committee must stick to its insistence that Mr. Rove, Ms. Miers and other White House officials testify in public and under oath and that all documents be turned over to Congress, including e-mail messages by Mr. Rove that the Republican Party has yet to produce.

Administration tried to curb election turnout in key states

The Baltimore Sun reports that investigations have revealed a systematic campaign by the Bush Administration to block voting in key districts over the past six years. Says Joseph Rich, the former head of the Voting Rights Section of the Civil Rights Division of the Justice Department, "As more information becomes available about the administration's priority on combating alleged, but not well substantiated, voter fraud, the more apparent it is that its actions concerning voter ID laws are part of a partisan strategy to suppress the votes of poor and minority citizens."

Administration tried to curb election turnout in key states
Campaign against alleged voter fraud sought to bolster the GOP
By Greg Gordon
Mcclatchy-tribune
April 19, 2007

WASHINGTON -- For six years, the Bush administration, aided by Justice Department political appointees, has pursued an aggressive legal effort to restrict voter turnout in key battleground states in ways that favor Republican political candidates, according to former department lawyers and a review of written records.

The administration intensified its efforts last year as President Bush's popularity and Republican support eroded heading into a midterm battle for control of Congress, which the Democrats won.

Facing nationwide voter registration drives by Democratic-leaning groups, the administration alleged widespread election fraud and endorsed proposals for tougher state and federal voter identification laws. Presidential political adviser Karl Rove alluded to the strategy in April 2006 when he railed about voter fraud in a speech to the Republican National Lawyers Association.

Questions about the administration's campaign against alleged voter fraud have helped fuel the political tempest over the firings last year of eight U.S. attorneys, several of whom were ousted in part because they failed to bring voter fraud cases important to Republican politicians. Attorney General Alberto R. Gonzales could shed more light on the reasons for those firings when he appears today before the Senate Judiciary Committee.

Civil rights advocates contend that the administration's policies were intended to disenfranchise hundreds of thousands of poor and minority voters who tend to support Democrats, and by filing state and federal lawsuits, civil rights groups have won court rulings blocking some of its actions.

Justice Department spokeswoman Cynthia Magnuson called any allegation that the department has rolled back minority voting rights "fundamentally flawed."

She said the department has "a completely robust record when it comes to enforcing federal voting rights laws," citing its support last year for reauthorization of the 1965 Voting Rights Act and the filing of at least 20 suits to ensure that language services are available to non-English-speaking voters.

The administration, however, has repeatedly invoked allegations of widespread voter fraud to justify tougher voter ID measures and other steps to restrict access to the ballot, even though research suggests that voter fraud is rare.

Since President Bush's first attorney general, John Ashcroft, a former Republican senator from Missouri, launched a "Ballot Access and Voter Integrity Initiative" in 2001, Justice Department political appointees have exhorted U.S. attorneys to prosecute voter fraud cases, and the department's Civil Rights Division has sought to roll back policies to protect minority voting rights.

On virtually every significant decision affecting election balloting since 2001, the division's Voting Rights Section has come down on the side of Republicans, notably in Florida, Michigan, Missouri, Ohio, Washington and other states where recent elections have been decided by narrow margins.

Joseph Rich, who left his job as chief of the section in 2005, said these events formed an unmistakable pattern.

"As more information becomes available about the administration's priority on combating alleged, but not well substantiated, voter fraud, the more apparent it is that its actions concerning voter ID laws are part of a partisan strategy to suppress the votes of poor and minority citizens," he said.

Former department lawyers, public records and other documents show that since Bush took office, political appointees in the Civil Rights Division have:

• Approved Georgia and Arizona laws that tightened voter ID requirements. A federal judge tossed out the Georgia law as an unconstitutional infringement on the rights of poor voters, and a federal appeals court signaled its objections to the Arizona law on similar grounds last fall, but that litigation was delayed by the U.S. Supreme Court until after the election.

• Issued advisory opinions that overstated a 2002 federal election law by asserting that it required states to disqualify new voting registrants if their identification didn't match that in computer databases, prompting at least three states to reject tens of thousands of applicants mistakenly.

• Done little to enforce a provision of the 1993 National Voter Registration Act that requires state public assistance agencies to register voters. The inaction has contributed to a 50 percent decline in annual registrations at those agencies, to 1 million from 2 million.

• Sued at least six states on grounds that they had too many people on their voter rolls. Some eligible voters were removed in the resulting purges.