Tipped off by Ashcroft’s chief of staff, Acting Attorney General Comey and other Justice Department officials raced to the hospital so they would be there when Gonzales and Card arrived. It will never be known whether Ashcroft would have been competent to understand what they were telling him and whether they would have persuaded him to sign.
Had he gone ahead and done so, he would be have been signing a document facilitating a program that he and his top aides had only recently concluded was of questionable legality.
As Gonzales and Ashcroft made their way to the George Washington University Medical Center, where Ashcroft was recovering from surgery, an upset Mrs. Ashcroft called her husband’s chief of staff to tell him that Gonzales and Card were on their way to the hospital. He in turn called Comey.
Comey’s account of what transpired next is now well known. Comey, FBI Director Robert Mueller, and Jack Goldsmith, head of the Justice Department’s Office of Legal Counsel, whose office had recently written a legal opinion concluding that the surveillance program was of questionable legality, have all testified about what transpired just before and during the showdown in Aschcroft’s hospital room. But it bears some repeating, if only to show what we now know President Bush set in motion.
Comey was on his way home the evening of March 10, 2004, when he received the call. He ordered his security detail to get him to the hospital immediately.
Comey later told the Senate Judiciary Committee: "I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.”
Careening down Constitution Avenue at high speed and with sirens blaring, Comey arrived only minutes before Gonzales and Card did. Similarly alerted, Goldsmith had also raced to the hospital and run up the steps to arrive, out of breath, at Ashcroft’s bedside.
On the way, Comey had frantically called FBI Director Robert Mueller. Mueller was so concerned about what Gonzales and Card were attempting to do, according to Comey, that he instructed FBI agents who constituted Ashcroft’s and Comey’s security details that Comey was not “to be removed from the room under any circumstance.”
Within minutes after Comey and Goldsmith reached Ashcroft’s bedside, Gonzales and Card also arrived. Comey would later recall to Congress that Gonzales was “carrying an envelope” with him. The envelope contained the certification that President Bush so badly wanted him to sign.
"I was angry," Comey testified. "I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me."
Gonzales, in an attempt to persuade Ashcroft to sign the certification, simply misled Ashcroft. Gonzales told Ashcroft he had met earlier that day with congressional leaders who, he claimed, supported the continuation of the program without Department of Justice approval, and were determined to find a legislative remedy that would address the legal concerns of Comey and others. Several of the legislative leaders who had been at that meeting with Gonzales and Vice President Cheney say that Gonzales’s account of what transpired was simply not true.
In response to Gonzales’s and Card’s gambits, Ashcroft, according to Comey, “stunned me … lifted his head off the pillow,” and then told Gonzales and Card, “I’m not the attorney general.” Mustering all the energy he had left, he pointed toward Comey and resolutely said, “There is the attorney general.”
Even in the face of Ashcroft’s refusal to certify the program as being within the law, President Bush initially reauthorized the surveillance program on his own. In Angler, Barton Gellman suggests that this move “may have been the nearest thing to a claim of unlimited power ever made by an American president, all the more radical for having been issued in secret. Not only would the will of Congress be flouted, but if the White House had its way, Congress would never know.”
Learning of the reauthorization, Ashcroft, Comey, and more than a dozen officials at the highest levels of government became concerned that if the surveillance program was allowed to continue on as it had been, the government could be engaging in an illegal activity at the direction of the president, and they quietly spoke of resigning en masse.
The mass resignation of so many senior officials of the government would have been all but unprecedented in modern American political history.
One former Justice Department official personally involved in the events said that the only historical precedent would have been the Saturday Night Massacre, when Attorney General Elliot Richardson resigned rather than carry out an order from President Nixon to fire the Watergate special prosecutor, Archibald Cox. With Richardson out of the way, Nixon ordered the new acting attorney general, William Ruckelshaus, to fire Cox; Ruckelshaus also refused and resigned as well. The next in line for succession as acting attorney general was the solicitor general, Robert Bork, who finally fired Cox and ordered the FBI to seal and seize Cox’s office.
The former Justice Department official says that the Saturday Night Massacre would have “been nothing compared to what almost came to be … I mean, it would have been poof! and the attorney general would have been gone. The deputy attorney general would have been gone. Goldsmith—he would have been gone. The FBI director would have resigned.”
If all those men had resigned, top aides to each of them would have resigned as well. Ashcroft’s chief of staff and two deputy chiefs of staff said they would go with their boss. Comey’s top aides would have resigned with him. The general counsels of the CIA and FBI said they were going to resign as well.
Adding to this constitutional spectacle would have been the fact that the administration’s warrantless surveillance program was considered one of the most closely held national-security secrets in government at the time. There would have been no immediate explanation of why a portion of the government just up and resigned at once.
Ultimately, confronted with the possible resignations of his own top aides, Bush backed down. The president agreed to address the concerns of the Justice Department and to make significant changes in the program so that it would be conducted within the law. But the president did not do so without first defiantly telling Comey, “I decide what the law is for the executive branch.”
Bush’s change of heart apparently had little to do with the rule of law, but rather more to do with political pragmatism and his fear that the entire affair might become public.