The Prosecution of Governor Siegelman

CBS News reports:

Is Don Siegelman in prison because he’s a criminal or because he belonged to the wrong political party in Alabama? Siegelman is the former governor of Alabama, and he was the most successful Democrat in that Republican state. But while he was governor, the U.S. Justice Department launched multiple investigations that went on year after year until, finally, a jury convicted Siegelman of bribery.

Now, many Democrats and Republicans have become suspicious of the Justice Department’s motivations. As correspondent Scott Pelley reports, 52 former state attorneys-general have asked Congress to investigate whether the prosecution of Siegelman was pursued not because of a crime but because of politics.

Ten years ago life was good for Don Siegelman. After he became governor, many believed he was headed to a career in national politics. In 1999, Siegelman’s pet project was raising money to improve education, so he started a campaign to ask voters to approve a state lottery. He challenged Republicans to come up with a better idea.

“You tell us how you’re going to pay for college scholarships. You tell us how you’re going to put state of the art computers inside every school in this state,” he said.

But now the applause has long faded. Today, Siegelman is at a federal prison camp in Louisiana. He’s doing seven years. The main charge against him was that he took a bribe, giving a position on a state board to businessman Richard Scrushy, who had made a big donation to that lottery campaign. There was a star witness, Nick Bailey, a Siegelman aide who had a vivid story to tell.

“Mr. Bailey had indicated that there had been a meeting with Governor Siegelman and Mr. Scrushy, a private meeting in the Governor's office, just the two of them,” says Doug Jones, who was one of Siegelman’s lawyers. “And then, as soon as Mr. Scrushy left, the governor walked out with a $250,000 check that he said Scrushy have given him for the lottery foundation.”

“Had the check in his hand right then and there? “ Pelley asks.

“Had the check in his hand right then,” Jones says.

“That Scrushy had just handed to him, according to Bailey's testimony?” Pelley asks.

“That's right, showed it to Mr. Bailey. And Nick asked him, ‘Well, what does he want for it?’ And Governor Siegelman allegedly said, ‘A seat on the CON Board.’ Nick asked him, ‘Can we do that?’ And he said, ‘I think so,’” Jones says.

The CON board regulates hospital construction, and Scrushy ran a healthcare company. Both Siegelman and Scrushy were convicted in federal court.

But, as 60 Minutes found out, the imprisonment of Don Siegelman is not nearly as simple as that.

“I haven't seen a case with this many red flags on it that pointed towards a real injustice being done,” says Grant Woods, the former Republican attorney general of Arizona.

Woods is one of the 52 former state attorneys-general, of both parties, who’ve asked Congress to investigate the Siegelman case.

“I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of,” Woods says.

Now a Republican lawyer from Alabama, Jill Simpson, has come forward to claim that the Siegelman prosecution was part of a five-year secret campaign to ruin the governor. Simpson told 60 Minutes she did what’s called “opposition research” for the Republican party. She says during a meeting in 2001, Karl Rove, President Bush’s senior political advisor, asked her to try to catch Siegelman cheating on his wife.

"Karl Rove asked you to take pictures of Siegelman?" Pelley asks.

"Yes," Simpson replies.

"In a compromising, sexual position with one of his aides," Pelley clarifies.

"Yes, if I could," Simpson says.

She says she spied on Siegelman for months but saw nothing. Even though she was working as a Republican campaign operative, Simpson says she wanted to talk to 60 Minutes because Siegelman’s prison sentence bothers her conscience.

Simpson says she wasn’t surprised that Rove made this request. Asked why not, she tells Pelley, “I had had other requests for intelligence before.”

“From Karl Rove?” Pelley asks.

“Yes,” Simpson says.

Rove was a strategist in Alabama. Simpson says she worked with him on several campaigns.

60 Minutes contacted Rove. Through his lawyer, he denied Simpson’s allegations. One of Rove’s close Alabama associates was Republican consultant Bill Canary. Simpson says she was on a conference call in 2002 when Canary told her she didn’t have to do more intelligence work because, as Canary allegedly said, “My girls” can take care of Siegelman. Simpson says she asked “Who are your girls?”

“And he says, ‘Oh, my wife, Leura. You know, she's the Middle District United States Attorney.’ And he said, ‘And then Alice Martin. She is the Northern District Attorney, and I've helped with her campaign,’” Simpson says.

“Federal prosecutors?” Pelley asks.

“Yes, Sir,” she says.

Bill Canary denies the conversation ever happened. He told 60 Minutes he never tried to influence any government official in the case. His wife Leura Canary and Alice Martin are top federal prosecutors in the state. Both were appointed by President Bush, and their offices investigated Siegelman. Details of some of those investigations leaked to the press. And Siegelman lost his 2002 re-election campaign narrowly to Republican Bob Riley.

Two years later, as Siegelman geared up to run again, the Justice Department took one of its Siegelman investigations to trial-an indictment involving an alleged Medicaid scam.

“He’s indicted. He goes to trial. That's a pretty big deal to have your former governor on trial. Everybody's there. The government gives their opening argument. The judge says, ‘I want to see you in chambers because this case, there's no case here,’" Grant Woods says.

Woods says the judge threw the case out, without a witness testifying. “The case is so lame that he throws it out,” he says.

Vindicated, Siegelman focused on winning the 2006 election. And that’s when Jill Simpson says she heard the Justice Department was going to try again. She says she heard it from a former classmate and work associate Rob Riley, the son of the new Republican governor.

“Rob said that they had gotten wind that Don was going to run again,” she says.

“And Rob Riley said what about that?” Pelley asks.

“They just couldn't have that happen,” Simpson says.

Asked how they were going to prevent that from happening, she says, “Well, they had to re-indict him, is what Rob said.”

Simpson told this same story, under oath, to Congressional investigators in a closed session. Rob Riley told 60 Minutes he never talked to Jill Simpson about this.

Four months after Simpson says they spoke, Siegelman was indicted on new charges. Doug Jones, Siegelman’s lawyer, says one of the prosecutors told him that Justice Department headquarters in Washington had ordered a top to bottom review of the case. Today, the Alabama prosecutors deny that it was Washington - but whoever ordered it, there was a big boost to the investigation.

“They started over. People started getting subpoenas that had never gotten subpoenas before, for testimony, for records. The governor's brother, his bank records started getting subpoenaed. The net was cast much wider than had ever been cast before,” Jones says.

“You know, on the other hand, what's wrong with the Department of Justice vigorously investigating a case if they think there is an indictment to be made on public corruption charges?” Pelley asks.

“Well, you still have to investigate crimes, not people. It undermines the entire system of justice because at that point anybody can be a target. Any prosecutor can look across the table and say, ‘You know what? I just don't like you,’” Jones says.

The prosecution was handled by the office of U.S. Attorney Leura Canary, whose husband Bill Canary had run the campaign of Siegelman’s opponent, Gov. Riley.

“Why would you do it that way?” Woods asks. “Why wouldn't you say, ‘You know what? We're going to bring in someone from another jurisdiction to do it. There's a lot of United States attorneys around the country. We'll have somebody come in and do this case.’ That's not what happened in Alabama. Every time they had the chance to go the extra mile to be independent and objective, they didn't do it.”

Leura Canary handled the case for eight months. When defense attorneys objected, she turned it over to her assistants and says that she had nothing further to do with it.

In this new investigation, prosecutors zeroed in on that vivid story told by Siegelman’s aide, Nick Bailey, who said he saw the governor with a check in his hand after meeting Richard Scrushy. Trouble was, Bailey was wrong about the check, and Siegelman’s lawyer says prosecutors knew it.

“They got a copy of the check. And the check was cut days after that meeting. There was no way possible for Siegelman to have walked out of that meeting with a check in his hand,” Jones explains.

“That would seem like a problem with the prosecution's case,” Pelley remarks.

“It was a huge problem especially when you've got a guy who's credibility was going to be the lynch pin of that case. It was a huge problem,” Jones says.

And there was another problem with the prosecutor’s star witness: Nick Bailey was a crook. Unknown to Siegelman, Bailey had been extorting money from Alabama businessmen. Facing ten years in prison, Bailey agreed to cooperate with prosecutors to get a lighter sentence.

60 Minutes went to talk to Bailey. The Justice Department wouldn’t let our cameras into the prison, but we met with him for hours.

Bailey told 60 Minutes that before the Siegelman trial, he spoke to prosecutors more than 70 times, and he admitted that during those conversations he had trouble remembering details. He told 60 Minutes the prosecutors were so frustrated, they made him write his proposed testimony over and over to get his story straight.

If Bailey’s telling the truth, his notes, by law, should have been turned over to the defense. But Siegelman’s lawyers tell 60 Minutes they never saw any such notes and never had a chance to show the jury just how much Bailey’s story had changed.

No one at the Justice Department would be interviewed for this story, but they did send a statement which read, in part, "This case was brought by career prosecutors … based upon the law and the evidence alone. After considering that evidence … a jury of Mr. Siegelman's peers found him guilty beyond a reasonable doubt.”

But Grant Woods, the former attorney general of Arizona, says the case should never have gone to trial. “The prosecutor's gotta look at it and say, ‘Hey, is this the sort of thing that we're really talking about when we're talking about bribery?’ Because what the public needs to know here is there is no allegation that Don Siegelman ever put one penny in his pocket,” he says.

Richard Scrushy did make donations totaling $500,000 to that education lottery campaign, and after serving on the hospital board under three previous governors, Scrushy was re-appointed by Siegelman.

But Woods says that’s politics, not bribery. “You do a bribery when someone has a real personal benefit. Not, ‘Hey, I would like for you to help out on this project which I think is good for my state.’ If you're going to start indicting people and putting them in prison for that, then you might as well just build nine or ten new federal prisons because that happens everyday in every statehouse, in every city council, and in the Congress of the United States,” he says.

“What you seem to be saying here is that this is analogous to giving a great deal of money to a presidential campaign. And as a result, you become ambassador to Paris,” Pelley remarks.

“Exactly. That's exactly right,” Woods says.

Siegelman was campaigning in the 2006 Democratic primary as he went to trial. “We’re going to turn this bus into what we call the night shift, because after the trial every day we’re gonna be hittin the trail every day,” he said.

But he lost in the primary. After two months, the jury deadlocked twice, then, voted to convict on its third deliberation. Many legal minds were shocked when federal judge Mark Fuller, at sentencing, sent Siegelman directly to prison without allowing the usual 45 days before reporting.

“He had him manacled around his legs like we do with crazed killers. And whisked off to prison just like that. Now what does that tell you? That tells you that this was personal. You would not do that to a former governor,” Woods says.

“Would you do that to any white collar criminal?” Pelley asks.

“No, I haven't seen it done,” Woods says.

“Help me understand something. You're blaming the Republican administration for this prosecution. You're saying it was a political prosecution. You are a Republican. How do I reconcile that?” Pelley asks.

“We're Americans first. And you got to call it as you see it. And you got to stand up for what's right in this country,” Woods says.

Karl Rove and others at the White House were subpoenaed to testify before Congress but they refused to appear. And the Justice Department has refused to turn over hundreds of documents in the case.

More Questions Over White House E-Mail

The Associated Press reports:

An ethics advocacy group asked a federal judge Thursday to order the White House to preserve tapes used to back up its e-mail system.

Asserting that the White House may not have kept copies of e-mails that are at the heart of a dispute over the Bush administration's record-keeping, Citizens for Responsibility and Ethics in Washington filed a motion asking for a court order to preserve computer backup tapes.

"The White House is refusing to confirm that they have maintained e-mail going back to the beginning of the administration as they are required by law to do," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics.

The group placed on the public record two Justice Department letters stating that the White House is maintaining all backup tapes that were in the possession of the White House Office of Administration as of Sept. 25, 2007, the date CREW sued the Executive Office of the President in the e-mail controversy.

The private group asked the Justice Department for information about what backup tapes were in the White House's possession, but the Justice Department has not provided an explanation.

The possibility that backup tapes may not contain copies of all White House e-mail is a new dimension to the controversy, which first arose in early 2006. CREW alleges that millions of White House e-mails are missing, and that the backup tapes contained the lone remaining copies.

"At present the missing e-mail records exist only on backup tapes and other mediums, if at all," CREW said in its court filing. "Thus, those backup tapes contain the only copies of important historical evidence of this presidency."

CREW is entitled to a temporary restraining order to prevent any further document destruction, the group said in its filing with U.S. District Judge Henry Kennedy, an appointee of President Clinton.

In the past, the White House has said it is aware that some e-mails may not have been automatically archived on a computer server for the Executive Office of the President and that the e-mails may have been preserved on backup tapes.

In response to the latest court filing, White House spokesman Scott Stanzel said that because the matter is in court, he is referring to previous White Houses comments on the issue.

The White House has said that its Office of Administration is looking into whether there are e-mails that were not automatically archived and that if there is a problem, the necessary steps will be taken to address it.

The first indication of a problem came in nearly two years ago when special counsel Patrick Fitzgerald raised the possibility that records sought in the CIA leak investigation involving the outing of Valerie Plame could be missing because of an e-mail archiving problem at the White House.

The issue arose again this year amid the controversy over the firing of U.S. attorneys. Aides to Bush improperly used Republican Party-sponsored e-mail accounts for official business and an undetermined number of e-mails were lost.

Selective Justice in Alabama?

TIME reports:

On May 8, 2002, Clayton Lamar (Lanny) Young Jr., a lobbyist and landfill developer described by acquaintances as a hard-drinking "good ole boy," was in an expansive mood. In the downtown offices of the U.S. Attorney in Montgomery, Ala., Young settled into his chair, personal lawyer at his side, and proceeded to tell a group of seasoned prosecutors and investigators that he had paid tens of thousands of dollars in apparently illegal campaign contributions to some of the biggest names in Alabama Republican politics. According to Young, among the recipients of his largesse were the state's former attorney general Jeff Sessions, now a U.S. Senator, and William Pryor Jr., Sessions' successor as attorney general and now a federal judge. Young, whose detailed statements are described in documents obtained by TIME, became a key witness in a major case in Alabama that brought down a high-profile politician and landed him in federal prison with an 88-month sentence. As it happened, however, that official was the top Democrat named by Young in a series of interviews, and none of the Republicans whose campaigns he fingered were investigated in the case, let alone prosecuted.

The case of Don Siegelman, the Democratic former Governor of Alabama who was convicted last year on corruption charges, has become a flash point in the debate over the politicization of the Bush Administration's Justice Department. Forty-four former state attorneys general — Republicans and Democrats — have cited "irregularities" in the investigation and prosecution, saying they "call into question the basic fairness that is the linchpin of our system of justice." The Department of Justice and the U.S. Attorney's office strongly deny that politics played any part in Siegelman's prosecution. They say the former Governor, who recently began serving the first months of his more than seven-year sentence, got exactly what he deserved. But Justice officials have refused to turn over documentation on the case requested by the House Judiciary Committee, which scheduled a hearing on Siegelman's prosecution for Oct. 11.

Now TIME has obtained sensitive portions of the requested materials, including FBI and state investigative records that lay out some of Young's testimony. The information provided by the landfill developer was central to roughly half the 32 counts that Siegelman faced for allegedly accepting campaign contributions, money and gifts in exchange for official favors. (Siegelman was acquitted on 25 of those counts and convicted on seven. Young pleaded guilty to bribery-related charges and, in recognition of his cooperation with the government, received a short two-year sentence and fine.) But what Young had to say about Sessions, Pryor and other high-profile Alabama Republicans was even more remarkable for the simple fact that much of it had never before come to light.

The Young transcripts will probably add fuel to charges that the Bush Administration pursued selective justice in Alabama. Leura Canary, the U.S. Attorney whose office drove Siegelman's prosecution, is married to Bill Canary, Alabama's most prominent political operative and a longtime friend of Karl Rove's. In May an Alabama lawyer and Republican activist named Dana Jill Simpson gave a notarized statement that she heard Canary say Rove "had spoken with the Department of Justice" about "pursuing" Siegelman, with help from two of Alabama's U.S. Attorneys. Bill Canary called her charge "outrageous," and other alleged participants in the phone conversation issued similar denials. (The White House declined to comment, citing Siegelman's pending appeal.) But last month Simpson testified behind closed doors before the House Judiciary Committee. Sources tell TIME that, under penalty of perjury, she repeated her allegations about Canary and Rove.

Alabama is as red a state as the clay in its earth. After the years of rule by Southern Democrats, Republicans have now taken up residence in the Governor's mansion, as well as most statewide offices and congressional seats. In the 1990s Rove helped orchestrate a G.O.P. near sweep of the Alabama Supreme Court.

In this new Republican landscape, Siegelman emerged as one of the few Democratic stars, winning the Governor's race in 1998. He lost the seat in a close and contested race in 2002, but polls in 2003 showed that he had a good chance of recapturing the governorship. Then came the first indictment from the U.S. Attorney in Birmingham, charging Siegelman with using his position to rig a state bidding process. A judge dismissed the case in 2004 for lack of evidence. Just as Siegelman was preparing to run for Governor again, a second round of charges was brought in 2005 by the U.S. Attorney's office in Montgomery. His trial in 2006 overlapped with Alabama's Democratic primary, in which Siegelman had initially been a heavy favorite.

The investigation into Siegelman began as an inquiry into a contract held by Young to build a state warehouse in Alabama. Young was a well-liked figure in Montgomery who, by his own account, was in the habit of handing out cash, checks, rides on his private airplane and other goodies to members of both political parties. In return, he apparently hoped to receive favorable treatment for his garbage dumps and other lucrative state-related business.

Young testified that he had furnished Siegelman with an all-terrain vehicle and a motorcycle, lavishing money on the Governor and his aides. But he was an equal-opportunity influence monger. Early in the investigation, in November 2001, Young announced that five years earlier, he "personally provided Sessions with cash campaign contributions," according to an FBI memo of the interview. Prosecutors didn't follow up that surprising statement with questions, but Young volunteered more. The memo adds that "on one occasion he [Young] provided Session [sic] with $5,000 to $7,000 using two intermediaries," one of whom held a senior position with Sessions' campaign. On another occasion, the FBI records show, Young talked about providing "$10,000 to $15,000 to Session [sic]. Young had his secretaries and friends write checks to the Sessions campaign and Young reimbursed the secretaries and friends for their contributions."

If true, Young's statements describe political money laundering that would be a clear violation of federal law. In 1996, when Young said he had made the contributions, it was illegal to give a candidate more than $1,000 for a primary or general campaign. None of the individuals Young named as his intermediaries in making the donations are listed in Federal Election Commission records as contributors to Sessions' 1996 U.S. Senate race. "We have on record a $1,000 contribution from Mr. Young during the 1996 election cycle and no record of any other contribution from him," says a spokesman for Sessions.

Young also openly offered details about what he said were donations totaling between $12,000 and $15,000 to Pryor's campaign for state attorney general. Once again, Young had used the friends-and-colleagues maneuver. According to the FBI record, "Young advised that during Pryor's 1998 campaign, he contributed money through other individuals." Young named four people who "all wrote checks to Pryor's campaign and were reimbursed by Young for their contributions." At one point in the conversation, Young seemed particularly eager to tell all. "This was not just for the Governor's [Siegelman's] campaign," he told investigators. "It was also for the attorney general's campaign ... I gave you the example of five checks totaling $25,000. If I was there, I would write them out or just sign them, and they would fill in who it was to or whatever." According to Young, a top official on Pryor's campaign "would call and say, 'I need money for this, this or this,'" and Young would take care of the request. ("I do not have a recollection of the amounts that you describe as having been contributed by Lanny Young or his associates to my campaign," Pryor wrote in an e-mail to TIME.)

But it wasn't always as impersonal as handing over a stack of bills or checks. Among the illegal actions alleged in Siegelman's indictment was his acceptance from Young of thousands of dollars' worth of free T shirts and hundreds of specially embossed coffee mugs to give away as Christmas presents. The freebies were popular, said Young. "I had got them coffee cups and stuff before and shirts, and I had the same thing for Bill [Pryor]." Young estimated the value of the mugs at $13,000 to $15,000, and he even offered to share the extras with his inquisitors: "I've still got a case of his [Pryor's coffee cups] ... if y'all want to come get them." ("I don't think we want to touch them right now," an investigator replied.)

This evidence was heard by lawyers from U.S. Attorney Canary's office, representatives of Alabama's Republican attorney general and an attorney from the Justice Department's public-integrity unit in Washington. But in an unusual exercise of prosecutorial discretion, nearly all the payments and donations went uninvestigated. And when Siegelman's defense team, which had obtained Young's statements amid tens of thousands of documents provided in discovery, raised his accusations briefly in court, a judge quickly ruled them irrelevant.

Legal experts say prosecutors enjoy wide latitude in deciding whom to charge in criminal cases. But according to Laurie Levenson, a former assistant U.S. Attorney and a prominent expert in legal ethics at Loyola Law School in Los Angeles, there are limits. "Certainly prosecutors would face a professional obligation to check out or verify the allegations in this case," she says. "Not doing so would represent a potential abuse of prosecutorial discretion." The key, she adds, is whether prosecutors chose not to pursue evidence of criminal activity by Republicans because of political bias or a conflict of interest. Sometimes prosecutors have a more benign motive; they may simply verify that allegations are untrue or be unclear on how to categorize the offense or the relevant statute of limitations. Certainly in Young's statements about Sessions and Pryor, he did not allege a quid pro quo for his money laundering of their campaigns. And whatever the involvement of their campaigns, Sessions and Pryor both assert they were completely unaware of his confessed chicanery. But the U.S. Attorney's office chose to prosecute Siegelman in no small measure on the basis of Young's word and chose not to investigate Sessions and Pryor — or their campaigns — on the basis of that same word.

Several people involved in the Siegelman case who spoke to TIME say prosecutors were so focused on going after Siegelman that they showed almost no interest in tracking down what Young said about apparently illegal contributions to Sessions, Pryor, other well-known figures in the Alabama G.O.P. and even a few of the state's Democrats. "It just didn't seem like that was ever going to happen," said an individual present during key parts of the investigation. "Sessions and Pryor were on the home team."

That description is not just a metaphor: several of the lawyers involved in the Siegelman investigation were from Pryor's office and had worked for Sessions as well when he held the post. In such circumstances, say experts on legal ethics, it is nearly always incumbent on investigators to inform a third party and recuse themselves from further questioning to avoid a conflict of interest. In this instance, it appears the investigators chose not to recuse themselves but to simply ignore the allegations. (Steve Feaga, an assistant U.S. Attorney in Canary's office, says, "I'm confident that we investigated every viable federal crime and prosecuted them.")

The fact that most of Young's claimed contributions apparently went unrecorded raises the possibility that he never made them, that he was merely boasting. But it would also mean that he had lied to federal agents, which is a felony, and Young was never charged with that crime. If he had lied, that would also have diminished Young's credibility as a key government witness against Siegelman. One of Young's lawyers tells TIME, "There was never the slightest suggestion by prosecutors that the information my client provided about contributions to Sessions and Pryor was in any way untrue." The judge in the Siegelman case also seemed to find Young credible: he stated at sentencing that he had increased the sentencing guidelines for the Governor on the basis of a prosecution memo that alleged "systematic and pervasive corruption" and cited a "criminal relationship with Lanny Young."

The controversy surrounding the case in Alabama is not that Siegelman went to prison and his Republican colleagues didn't. Without an investigation or even questions being asked, it's impossible to know whether any of them committed illegal acts. The issue is that some of the same allegations that led to Siegelman's indictment never merited so much as a follow-up when raised in connection with Republicans.

U.S. Attorney Canary has vigorously rejected the suggestion of any political influence on the case. She has pointed out that the investigation of Siegelman originated not with her but with her Democratic predecessor as U.S. Attorney and in the office of Alabama's then attorney general, Bill Pryor. Moreover, she notes that she was in charge of the case for only eight months, long before indictments were handed down, and then publicly recused herself to avoid even the appearance of a conflict of interest.

Yet Canary was in charge when Young spoke about his payments to the Sessions and Pryor campaigns and to other Alabama Republicans. At the same time, her husband's consulting firm, Capitol Group LLC, was being paid close to $40,000 to advise Pryor. A source who held a senior post in Canary's office during the long-running investigation into Siegelman says it's almost inconceivable that Canary would not have been informed of Young's charges against prominent Republican officeholders and candidates. Canary denied that to TIME. The fact that those charges were never looked at will only heighten suspicions that the Siegelman prosecution was a case of selective justice and that in the Bush Administration, enforcing the law has been a partisan pursuit.

Broader Privilege Claimed In U.S. Attorney Firings

The Washington Post reports:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

Mark J. Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration's stance "astonishing."

"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said. "What this statement is saying is the president's claim of executive privilege trumps all."

The administration's statement is a dramatic attempt to seize the upper hand in an escalating constitutional battle with Congress, which has been trying for months, without success, to compel White House officials to testify and to turn over documents about their roles in the prosecutor firings last year. The Justice Department and White House in recent weeks have been discussing when and how to disclose the stance, and the official said he decided yesterday that it was time to highlight it.

Yesterday, a House Judiciary subcommittee voted to lay the groundwork for contempt proceedings against White House chief of staff Joshua B. Bolten, following a similar decision last week against former White House counsel Harriet E. Miers.

The administration has not directly informed Congress of its view. A spokeswoman for Rep. John Conyers Jr. (D-Mich.), the Judiciary Committee's chairman, declined to comment . But other leading Democrats attacked the argument.

Senate Majority Leader Harry M. Reid (D-Nev.) called it "an outrageous abuse of executive privilege" and said: "The White House must stop stonewalling and start being accountable to Congress and the American people. No one, including the president, is above the law."

Sen. Charles E. Schumer (N.Y.) said the administration is "hastening a constitutional crisis," and Rep. Henry A. Waxman (D-Calif.) said the position "makes a mockery of the ideal that no one is above the law."

Waxman added: "I suppose the next step would be just disbanding the Justice Department."

Under long-established procedures and laws, the House and Senate can each pursue two kinds of criminal contempt proceedings, and the Senate also has a civil contempt option. The first, called statutory contempt, has been the avenue most frequently pursued in modern times, and is the one that requires a referral to the U.S. attorney in the District.

Both chambers also have an "inherent contempt" power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.

In defending its argument, administration officials point to a 1984 opinion by the Justice Department's Office of Legal Counsel, headed at the time by Theodore B. Olson, a prominent conservative lawyer who was solicitor general from 2001 to 2004. The opinion centered on a contempt citation issued by the House for Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.

It concluded: "The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual."

In the Burford case, which involved spending on the Superfund program, the White House filed a federal lawsuit to block Congress's contempt action. The conflict subsided when Burford turned over documents to Congress.

The Bush administration has not previously signaled it would forbid a U.S. attorney from pursuing a contempt case in relation to the prosecutor firings. But officials at Justice and elsewhere say it has long held that Congress cannot force such action.

David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."

But Stanley Brand, who was the Democratic House counsel during the Burford case, said the administration's legal view "turns the constitutional enforcement process on its head. They are saying they will always place a claim of presidential privilege without any judicial determination above a congressional demand for evidence -- without any basis in law." Brand said the position is essentially telling Congress: "Because we control the enforcement process, we are going to thumb our nose at you."

Rozell, the George Mason professor and authority on executive privilege, said the administration's stance "is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president's view. . . . It's allowing the executive to define the scope and limits of its own powers."

Sara Taylor's Road To and From The White House

The Washington Post reports:

On a snowy evening in December 1998, Sara M. Taylor, the daughter of a former pipe fitter at a John Deere plant in Iowa, came to a meeting at the Capital Hilton. Washington had grown dark and quiet, and the hotel restaurant was empty, save two people: Omaha financial guru Warren Buffett, and the man she was there to meet -- Karl Rove. Rove had just helped reelect George W. Bush as governor of Texas, and now Rove and Bush had begun the slow process of building a presidential run.

Over the course of an hour Rove quizzed her on the politics of her home state. Her dad, before she was born, had done a stint in the Iowa legislature, and two years earlier she'd taken a year off from her studies at Drake University to work on the presidential campaign of Texas senator Phil Gramm. They spoke about the coalitions needed to win -- social conservatives and the agriculture constituency -- and about the need to meet people personally. Suddenly, Bush himself walked in, plopped down beside her and Rove and drilled her about what he needed to know to win Iowa. In a matter of months, Taylor moved back to Iowa, helping to set up Bush's 2000 win. She was 24.

That was the beginning of Taylor's relationship with the two men. The end is proving more difficult to resolve.

After eight years working with Bush and Rove through two presidential campaigns and two turbulent administrations, Taylor, now 32, finds herself unable to exit gracefully. After leaving her post as White House political director in May out of what she says was a search for normalcy, she now finds herself part of the unending congressional probe into the dismissal of nine U.S. attorneys.

Yesterday, after the White House invoked executive privilege regarding any meetings, conversations and deliberations she had in the matter, Taylor became the latest high-level political appointee to testify before the Senate Judiciary Committee. These constraints led to a torturous session, and both sides expressed frustration over what she could and couldn't say. Under questioning yesterday, she refused to answer several questions and testified that she never spoke or met with President Bush about plans to fire the U.S. attorneys last year.

Said friend and former White House communications director Nicolle Wallace: "I just feel like it's incredibly unfair that she's being caught in what's really a struggle between Congress and the White House."

Taylor's been in tough fights before. Following her service for Bush in Iowa, she moved on to South Carolina, Washington state and Michigan. After the cliffhanger election, she was dispatched to Florida to help with recount efforts. Often pulling volunteers from Texas off the floor for not paying attention to their tasks, she eventually developed a pinpoint tracking system that literally traced each recounted ballot.

"It's methodical," Taylor said one evening last week over dinner on Capitol Hill. "You create a system to check every ballot and then you have a spreadsheet in place to tell you where you are. We always knew if we lost one vote or picked one up."

Described by her former colleagues as a tireless worker, Taylor's stature only grew after Bush took control of the White House in 2001. First charged with overseeing the Midwest in the political office led by Ken Mehlman, she joined the 2004 reelection campaign as a top strategist. Taylor was involved in everything from media planning and travel schedules to polling and research.

Asked about her rapid rise, Taylor, who was a finance major in college, said, "I would argue a lot of it had to do with my analytical ability. I think a lot of political operatives have good people skills and great social skills and work really hard, but everyone's not really good at math."

"I was the media director and her title was deputy strategist," said Mark McKinnon. "But functionally she basically did 80 percent of the work for me and [chief campaign strategist] Matthew Dowd. She knows polling, she knows media, she knows the field. For someone her age she has more knowledge than someone with a lifetime of campaigning."

Taylor's reward? A spot as the White House political director after the departure of Matthew Schlapp. From a mid-level staffer, Taylor came back to the White House to advise the senior staff and the president on domestic political issues and played an important role in anything involved with Bush's domestic agenda. Her new role meant constant contact with Rove, whose relationship with Taylor evolved from first "a teacher and leader to almost more of a partner," said Wallace.

"He makes you a better person because he's so methodical and is so smart and never misses anything and is demanding in a good way," Taylor said of her former boss. "He just doesn't have time for error. You can't put a value on the training process."

Another lesson learned?

"Even when you think an e-mail is private, it never is," she said, in reference to a disparaging e-mail involving the firing of Bud Cummins, the U.S. attorney in Little Rock.

By last December, after the Democrats won control of both the House and the Senate, Taylor had had enough. By her own account, she could never separate her personal and professional lives and found herself exhausted, ready to start a new life away from the White House. In May, she left.

A clean break it wasn't. After taking time off for the first time in years, she traveled to Europe and returned home to a subpoena.

She wasn't terribly surprised. Last year Taylor signed up for professional liability insurance after noting comments made by some Democrats on the 2006 campaign trail about wanting to investigate the White House.

But now she's on several hooks. This week she found out the insurance will not cover her legal costs. Moreover, she's restrained from fully telling her side of things, from moving on.

"It's a very difficult position to be in," she said. "The president has exerted executive privilege and I have great respect for the president. The problem for you as an individual is that this comes at a huge personal cost financially.

"But this is a bigger issue than me. I understand the president is doing what he believes is right."

All, Or Nothing At All

Reuters reports:

The White House on Monday dared the Democratic-led Congress to fight it in court by refusing to provide information and testimony demanded in an investigation into the firing of federal prosecutors.

White House counsel Fred Fielding, in a letter to two congressional chairmen, called their demands "unreasonable because it represents a substantial incursion into presidential prerogatives."

Congressional leaders disagreed and made it clear they were prepared for a court battle unless they reach a compromise with the White House on access to documents and witnesses.

"I hope the White House stops this stonewalling and accepts my offer to negotiate a workable solution," said Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat.

Democrats have sought compromise because a fight over whether Congress or the White House is right could take years to weave its way through the court system and still be undecided when President George W. Bush's second term ends in January 2009.

Bush is relying on a legal doctrine known as executive privilege, which has been invoked with mixed success to shield presidents and their aides from having to answer questions or turn over information to Congress.

White House spokesman Tony Snow brushed off the threat of a possible congressional contempt citation, saying, "It's up to them."

"What we do believe is that we are on perfectly solid legal ground," Snow said.

Congress wants the documents and testimony to determine if the firing of nine of the nation's 93 U.S. attorneys last year was the result of partisan politics and White House efforts to reward supporters.

Bush and U.S. Attorney General Alberto Gonzales insist the dismissals of the federal prosecutors were justified but mishandled. Gonzales, with Bush's support, has withstood bipartisan calls to resign.

OFFER TO TALK

The White House has offered to allow current and former aides to talk to lawmakers behind closed doors -- but only if it is not sworn testimony and there is no transcript. Leahy and others say the offer is unacceptable.

Sen. Arlen Specter of Pennsylvania, ranking Republican on the Judiciary Committee, said, "I think, candidly, there's a lot of posturing going on on both sides."

"I hope we can work it out so that we don't test the good faith of the executive branch ... or the good faith of the legislative branch," Specter said.

In his letter, Fielding rejected requests for materials to support Bush's claim of executive privilege last month in refusing to turn over documents. He also wrote Bush, as expected, was asserting presidential privilege to block subpoenaed testimony by two former aides, Sara Taylor and Harriet Miers.

Taylor, who served as White House political director, has been summoned to testify before the Senate Judiciary Committee on Wednesday, while Miers, who served as White House counsel, had been ordered to testify before a House panel on Thursday.

"While we remain willing to negotiate with the White House, they adhere to their unacceptable all-or-nothing position, and now will not even seek to properly justify their privilege claims," said House of Representatives Judiciary Committee Chairman John Conyers, a Michigan Democrat.

"Contrary to what the White House may believe, it is the Congress and the courts that will decide whether an invocation of executive privilege is valid, not the White House unilaterally," Conyers said.

There was no immediate indication how much longer Democrats would seek to reach an agreement with the White House before initiating court action.

Bush Invokes Executive Privilege, Refuses To Allow Miers & Taylor To Testify

The International Herald Tribune reports:

President George W. Bush, invoking executive privilege for the second time in his clash with lawmakers over the firing of federal prosecutors, said Monday that he would refuse to comply with congressional subpoenas for testimony from two top former aides.

In a letter to the chairmen of the House and Senate Judiciary Committees, Bush's counsel, Fred Fielding, declared that the legislative and executive branches of government were at an impasse. Fielding wrote that Bush was directing the two aides - Sara Taylor, former White House political director, and Harriet Miers, former White House counsel - not to testify.

"The assertion of executive privilege here is intended to protect a fundamental interest of the presidency: the necessity that a president receive candid advice from his advisers and that those advisers be able to communicate freely and openly with the president," Fielding wrote.

He added that in the case of the firing of federal prosecutors, "the institutional interest of the executive branch is very strong."

The move was not unexpected.

Bush said last month that he had no intention of letting Miers or Taylor testify.

Bush offered at that time to allow the two women, as well as other top aides - including Karl Rove, his chief political strategist - to be interviewed by lawmakers if the interviews were not under oath and were not transcribed. Though Democratic leaders in Congress rejected that offer as insufficient, Bush renewed it Monday.

The latest refusal to comply with the subpoenas raises tensions in an already tense legislative-executive clash and heightens the likelihood that the two sides will wind up in court. Congressional Democrats are trying to determine who sought the firings of nine federal prosecutors, and why. They want to know whether White House officials, including Rove, interfered with hiring and firing decisions at the Justice Department for political reasons, or perhaps to thwart certain investigations.

Bush said in June that he would not comply with subpoenas for documents in the case. At that time, the committee chairmen - Representative John Conyers and Senator Patrick Leahy - wrote to Fielding to complain that Bush was not acting in good faith.

In his letter, Fielding complained about the tone and language the Democrats used, telling them he wanted to convey "a note of concern over your letter's apparent direction in dealing with a situation of this gravity."

Leahy was dismissive of Fielding's letter, saying in a statement: "This is more stonewalling from a White House that believes it can unilaterally control the other co-equal branches of government. What is the White House trying to hide by refusing to turn over evidence it was willing to provide months ago, as long as that information was shared in secret with no opportunity for Congress to pursue the matter further?"

Gonzales Uses U.S. Attorney Appointment Power That Congress Banned

Raw Story reports:
In a Senate Judiciary Committee business meeting Thursday morning, Senator Patrick Leahy (D-VT) revealed that Attorney General Alberto Gonzales once again used an interim appointment authority at the heart of the US Attorneys controversy that Congress banned in a bill sent to the President for signature on June 4.

"Senator Feinstein’s U.S. Attorney bill....repeals that portion of the Patriot Act Reauthorization that had allowed the Attorney General to circumvent advice and consent with respect to U.S. Attorneys. That bill, the Preserving United States Attorney Independence Act of 2007, has been on the President’s desk since June 4. It seems he just cannot bring himself to sign it. Instead, we were informed yesterday through the Justice Department that the Attorney General has used the power that we have voted to repeal, again," said Senator Leahy, the committee's chairman.

Tracy Schmaler, a spokeswoman for Senator Leahy, clarified the situation in an e-mail to RAW STORY.

"It just so happens the committee got notice yesterday, that on June 16, George Cardona's 210 days as Acting U.S. Attorney in the Central District of California will have run out and the Attorney General will appoint him as an interim U.S. Attorney at that time. (i.e. still using the end-run authority because Bush has slow-walked signing the bill)," she wrote.

RAW STORY could not reach the Justice Department for comment at press time.

On June 4, the Congress sent S. 214, the Preserving United States Attorney Independence Act of 2007, to President George W. Bush. The bill overturned a measure stealthily passed by the Republican-led Congress in 2006 that allowed the Attorney General to indefinitely appoint US Attorneys on an interim basis. Critics said the provision was intended to do an end-run around the standard Senate confirmation process for US Attorneys.

The bill passed the Senate by a 94-2 margin on March 20, and also cleared the House of Representatives by a 306-114 vote on May 22. The President has yet to sign or veto the bill.

Arlen Specter to White House: "Let's Make a Deal"

From TPMmuckraker:
Here's Senate Judiciary Committee ranking member Arlen Specter (R-PA) on the floor of the Senate today making an offer to the White House for a compromise:

The standing offer from the White House is that congressional investigators interview White House aides about the U.S. attorney firings behind closed doors, with no oath or no transcript. Democrats have rejected that, and today the chairmen of the House and Senate judiciary committees issued subpoenas for former White House counsel Harriet Miers and Karl Rove's former top aide Sara Taylor.

Specter said that he'd spoken to the current White House counsel Fred Fielding today about the subpoenas for Taylor and Miers. Specter went on to muse about a possible compromise. He'd prefer that there be a public hearing and that the hearing be under oath, but said that's not necessary, given that it's a crime to lie to investigators, even if it's not under oath. But Specter said there needs to be a transcript -- otherwise it would be much more difficult to hold an aide to account for lying.

So if the White House offers to hand over Taylor and Miers for private interviews with a transcript (but no oath), Specter would agree. And given that a court battle between Congress and the White House is likely to drag on for months upon months, you can bet that Democrats would give such a deal serious consideration.

But before any of that happens, the White House has to give ground -- something they haven't done since Congress started knocking on the door in March. Will the subpoenas change that?

Wyoming U.S. Attorney Announces Resignation In Anticipation Of Senate Appointment?

The Billings Gazette reports:

Wyoming U.S. Attorney Matthew Mead, mentioned as a potential nominee for Wyoming's open U.S. Senate seat, announced Thursday that he would resign at midnight.

Mead said in a prepared statement that he submitted his resignation Wednesday. He offered no explanation and could not immediately be reached for comment.

Mead was appointed by President Bush in October 2001. He succeeded Dave Freudenthal, a Democrat appointed by President Clinton. Freudenthal is now governor of Wyoming.

Speculation has circulated since Monday's death of Sen. Craig Thomas, R-Wyo., that Mead might be interested in taking that job. Mead did not confirm the speculation, however.

"Sorry, I am going to dodge that one," he told the Jackson Hole News & Guide.

Last month, Mead confirmed that he was on the "third tier" of a list of U.S. attorneys drawn up by Justice Department officials who have since resigned. Eight U.S. attorneys were fired last year, but Mead pointed out that no one on the third tier resigned or was fired.

He wrote on the Casper Star-Tribune opinion page that he has never been told why he was on the list or what the third tier of the list meant.

"Perhaps my value system differed from those of the departed list makers. They are no longer with the Department; I am," he wrote. "Hopefully, with the list makers' recent departures, our ship will now track true and list no more."

But it was not clear, either, whether the list played a role in Mead's resignation.

Mead is a Jackson native and said in the release that he was returning to his family ranching operation.

"I have deeply valued pursuing the mission of the U.S. Department of Justice and working closely with our federal, state and local law enforcement partners and the Northern Arapaho and Eastern Shoshone tribal members," the release said.

"I am very pleased with the level of law enforcement cooperation in Wyoming that has developed over the last five and a half years. I leave office with the highest regard for Wyoming law enforcement and the good people at the U.S. Attorney's Office and the work that they all do."

Current Justice Dept Won't Retract Gonzales' Sworn Statement ("No Dissent Over Warrantless Wiretapping Program In '04")

The Washington Post reports:
The Justice Department said yesterday that it will not retract a sworn statement in 2006 by Attorney General Alberto R. Gonzales that the Terrorist Surveillance Program had aroused no controversy inside the Bush administration, despite congressional testimony Tuesday that senior departmental officials nearly resigned in 2004 to protest such a program.

The department's affirmation of Gonzales's remarks raised fresh questions about the nature of the classified dispute, which former U.S. officials say led then-Deputy Attorney General James B. Comey and as many as eight colleagues to discuss resigning.

Testifying Tuesday on Capitol Hill, Comey declined to describe the program. He said it "was renewed on a regular basis" and required the attorney general's signature.

He said a review by the Justice's Office of Legal Counsel in spring 2004 had concluded the program was not legal.

Comey said he and the others were prepared to resign when the White House renewed the program after failing to get a certification of its legality -- first from him and later from then-Attorney General John D. Ashcroft, while Ashcroft was ill and heavily sedated at George Washington University Hospital.

Gonzales, testifying for the first time in February 2006 about the Terrorist Surveillance Program, which involved eavesdropping on phone calls between the United States and places overseas, told two congressional committees that the program had not provoked serious disagreement involving Comey or others.

"None of the reservations dealt with the program that we are talking about today," Gonzales said then.

Four Democratic senators sent a letter to Gonzales yesterday asking, "do you stand by your 2006 Senate and House testimony, or do you wish to revise it," prompting the Justice Department's response.

Trancript & Video: Senate Judiciary Committee Hearing - May 15, 2007

Transcript of hearing on U.S. Attorney firings, testimony of former Deputy Attorney General, James Comey:
SEN. CHARLES E. SCHUMER, D-N.Y.: I have a brief opening statement. I'm sure Senator Specter does. And then we'll get right into the questions.

First, I want to thank and commend Chairman Leahy for his continued leadership on the critically important issue of the politicization of the Justice Department. This is our committee's fifth hearing in four months focusing on the mass firing of almost 10 percent of our country's top federal prosecutors.

At our last hearing, on April 19th, Attorney General Gonzales attempted to justify the dismissals, explain his role, and put the matter behind him. He failed miserably in that attempt.

Indeed, four weeks later, the dismissals remain unexplained, the attorney general's role is murkier than ever, and with each new revelation, retraction and resignation the issue remains planted on the front pages, hobbling the department's ability to get its important work done.

Let me briefly review some of the developments since the attorney general's ill-fated appearance before this committee on April 19th.

Since April 19th, the former deputy attorney general, who is here today, has contradicted other DOJ officials by testifying that most of the fired U.S. attorneys performed well. We will be hearing more about that today.

Since April 19th, former Missouri U.S. attorney Todd Graves has come forward to say that he was also asked to resign in 2006. That brings the number of dismissals to at least nine and counting, not the eight that Mr. Gonzales testified to.

We'll be hearing more about that situation when the committee considers authorizing Chairman Leahy to subpoena Mr. Graves and his replacement, Bradley Schlozman.

Since April 19th, we've learned that a political corruption case involving Republicans in Arizona may have been slow-walked until after the 2006 election, as the Wall Street Journal has reported.

U.S. Attorney Paul Charlton's unhappiness with the pace of approvals from Washington may have led to his ouster. We'll be hearing more about that if and when the department responds to our request for information and documents.

And since April 19th, we have learned that one of the attorney general's top advisers, Monica Goodling, may have been doing the unthinkable: imposing a political and ideological litmus test in the hiring of career-level prosecutors and department lawyers.

We'll be hearing more about that when Ms. Goodling soon testifies under a grant of immunity.

And, of course, just yesterday, we learned of the latest and most high-ranking casualty of the current imbroglio. Mr. Comey's successor to the number two position at the department, Paul McNulty, announced his resignation.

The attorney general could almost wallpaper his office with the resignation letters of those who he was supposed to be supervising.

SCHUMER: The majority of people in his top circle are now no longer at the Justice Department.

Kyle Sampson, who was responsible for putting together the final firing list, has resigned. Monica Goodling, who helped with the list and served as the department's liaison to the White House, has resigned. Mike Battle, who was ordered to fire seven U.S. attorneys last December 7th, has resigned. And, of course, now the deputy attorney general himself has decided to resign.

I heard today that Attorney General Gonzales was trying to assign blame to Paul McNulty for the firings of the U.S. attorneys, saying that he relied on McNulty's advice. That's ironic, because Paul McNulty came clean with this committee and gave us some valuable information while the attorney general stonewalled.

The attorney general is trying to make Mr. McNulty into the next Scooter Libby, but we all know the buck stops with the attorney general.

Mr. Gonzales said at this hearing -- at that these -- Mr. Gonzales said in this hearing room that he accepts responsibility for the firings. Well, he should live up to his words and not keep pointing the finger today at Mr. McNulty.

There's been a -- there's long been reason to be concerned about Attorney General Gonzales given his close connection with the White House and his apparent misconception of this current role. He seems to many in this country to embody a disrespect for the rule of law and intolerance of independence at the Justice Department.

He's presided over a Justice Department where being a, quote, "loyal Bushie" seems to be more important than being a seasoned professional, where what the White House wants is more important than what the law requires or what prudence dictates.

The current scandal merely crystallizes this problem, namely that loyalty to the White House trumps allegiance to the law, the truth and common sense.

For example, Attorney General Gonzales' former chief of staff has testified that one of the principal reasons the A.G. was upset after listening to Mr. McNulty's testimony on February 6th was that Mr. McNulty had talked too much about the White House's role in appointing Karl Rove's deputy as U.S. attorney in Arkansas.

SCHUMER: Specifically, Mr. Sampson said Gonzales was upset that McNulty had, quote, "put so much emphasis on the White House's role in Griffin being promoted in favor of Cummins," unquote. Gonzales was upset because Mr. McNulty, quote -- said, quote -- Gonzales was upset because Mr. McNulty, quote, "had really brought the White House's role in Griffin into the public sphere."

So it appears that the attorney general was apparently not upset that Mr. McNulty had overstated the White House's role or misstated that role. He was only upset that he had exposed it. And now it appears that Mr. McNulty is gone because of it.

We've only begun to understand the White House's role in the firings and the attorney general's role in accomplishing the White House's bidding. So far, however, we know this at least.

It was the White House that initially raised the prospect of firing all 93 U.S. attorneys.

It was the White House that promoted the idea of removing Bud Cummins in favor of a former aide to Karl Rove.

It was the White House that was upset at the department's belated rejection of a plan to bypass homestate senators in Arkansas to keep Tim Griffin installed indefinitely as U.S. attorney.

It was the White House that had the best opportunity to correct the record of its own involvement in the firing at a March 5th meeting attended by Karl Rove before Mr. Moschella gave incomplete testimony to Congress.

It was the White House that entertained complaints from Republican Party officials about David Iglesias which apparently led to his ouster.

It was the White House that had brought overblown complaints about voter fraud prosecutions to the attention of the Justice Department.

There'll be time for us to hear from those White House witnesses who can shed light on what transpired here, and I hope the day comes soon.

Senator Specter?

SEN. ARLEN SPECTER, R-PA. RANKING MEMBER: Thank you, Mr. Chairman.

I join in the welcome of you, Mr. Comey.

SPECTER: It is ironic in a sense that the former deputy attorney general should be with the Judiciary Committee today, on the same day that we learn of the resignation of the present deputy attorney general.

Earlier today, I wrote to Deputy Attorney General Paul McNulty congratulating him on his service with the Department of Justice, and wishing him well in his new career.

I did not say in the note to him what I'm about to say, but I think he found it difficult -- really, impossible -- to continue to serve in the Department of Justice as a professional, which Paul McNulty is, because it's embarrassing for a professional to work for the Department of Justice today.

We had the attorney general before a hearing. The testimony he gave was hard to understand, incredible in a sense -- to say that he was not involved in discussions and not involved in deliberations, when his three top deputies said he was and the documentary evidence supported that.

It is the decision of Mr. Gonzales as to whether he stays or goes. But it is hard to see how the Department of Justice can function and perform its important duties with Mr. Gonzales remaining where he is. And beyond Mr. Gonzales's decision, it's a matter for the president as to whether the president will retain the attorney general or not.

I think that the operation of the executive branch is a decision for the president. I don't want him telling me how to vote in the Senate on separation of powers, and I'm not going to tell him or make a recommendation to him as to what he ought to do with Mr. Gonzales.

SPECTER: But I think the resignation of Mr. McNulty is another significant step and evidence that a department really cannot function with the continued leadership or lack of leadership of Attorney General Gonzales.

As I view the situation, we really don't know yet what has happened, whether it is politicization or whether it is an ideological bent or what. There is no doubt that the president has the authority to fire all the attorneys general -- pardon me -- in order to fire the attorney general; Freudian slips are sometimes more revealing than the planned statements.

The president does have the authority to replace all of the 93 U.S. attorneys, as President Clinton did when he took office.

And prosecutions for voter fraud are very, very important. When I was district attorney of Philadelphia, I prosecuted both Republicans and Democrats for voter fraud: have a lot of it in Philadelphia.

In 1972, the Democrats and Republicans made a deal in South Philadelphia, a spot where many deals are made, to give the Republicans the top of the ticket -- President Nixon running for reelection -- and the Democrats the rest of the ticket.

A common pleas judge signed in at city hall at 6 a.m. that morning as evidenced by the registry roll, issued injunctions barring all of the McGovern poll watchers from the polling places. He was prosecuted, as were many other top city officials.

So, voter fraud prosecutions are very, very important.

SPECTER: But you can't bring a prosecution unless you have a case.

And now we have to determine if there was chicanery, whether there were efforts at voter prosecutions -- vote fraud prosecutions for investigations when there was no basis for doing so.

It may well be that when we get to the end of the rainbow we will find the explanation may be as simple as outright incompetence -- outright incompetence. To consider firing Peter Fitzgerald, which is what Kyle Sampson testified to, is patently ridiculous.

It is my hope that we will finish these investigations soon, because the continuing investigations are a harm to the -- we have to do our job. But the sooner we finish, the sooner the Department of Justice can return to its work.

If we had a new attorney general and concluded this investigation, made our findings public, it would be very important. Because those U.S. attorneys perform enormously important functions on fighting drugs and crime and terrorism and the administration of both civil and criminal justice in this country.

And I'm glad to see you're here today, Mr. Comey, because I know you can shed some additional light on this important subject.

Thank you, Mr. Chairman.

SCHUMER: Thank you, Senator Specter.

It's now my privilege to introduce our witness today, James B. Comey.

He is almost a man who needs no introduction. He's well known to this committee, which has twice favorably considered his nomination for important offices: first for the U.S. attorney in the Southern District of New York in 2002, then as deputy attorney general of the United States in 2003.

SCHUMER: Mr. Comey was educated at the College of William and Mary and the University of Chicago Law School. After law school, he served as a law clerk for then-U.S. District Judge John M. Walker Jr. in Manhattan. After that he spent most of the next 20 years as a dedicated public servant in the Justice Department.

Besides serving ably as U.S. attorney and deputy attorney general, Mr. Comey earned a reputation as a hard-nosed prosecutor in a number of high-profile and important cases, including Khobar Towers terrorist bombing case arising out of the June 1996 attack on a U.S. military facility in Saudi Arabia in which 19 airmen were killed.

Mr. Comey is currently the senior vice president and general counsel of the Lockheed Martin Corporation.

Now, I know it is not easy for you, Mr. Comey, to be here and talk about some of the recent travails at the department which you hold so dear.

I especially appreciate Mr. Comey's coming to testify here without the formality of a subpoena. In order to secure Mr. Comey's presence, I would have moved for consideration of a subpoena by the committee, but I'm glad that wasn't necessary because of your cooperation.

As far as I'm concerned, when the Justice Department lost Jim Comey, it lost a towering figure. And I don't say that because he stands 6'8" tall.

When Jim left the department, we lost a public servant of the first order, a man of unimpeachable integrity, honestly, character and independence.

And now I'd like to administer the oath of office. Would you please rise?

I sorry. I wish we were administering the oath of office.

(LAUGHTER)

The oath.

Do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth so help you, God?

FORMER DEPUTY ATTORNEY GENERAL JAMES B. COMEY: I do.

SCHUMER: Thank you.

OK, we're going to get right into the questioning because Mr. Comey does not have an opening statement.

SCHUMER: As I said in my opening remarks, many have been concerned that Alberto Gonzales has made the Justice Department a mere extension of the White House where independence takes a back seat to service to the White House, where the rule of law takes a back seat to the political needs of the president's party.

Before we get to the other issues, I want to go back to an incident from the time that Mr. Gonzales served as White House counsel.

There have been media reports describing a dramatic visit by Alberto Gonzales and Chief of Staff Andrew Card to the hospital bed of John Ashcroft in March 2004, after you, as acting attorney general, decided not to authorize a classified program.

First, can you confirm that a night-time hospital visit took place?

COMEY: Yes, I can.

SCHUMER: OK.

Can you remember the date and the day?

COMEY: Yes, sir, very well. It was Wednesday, March the 10th, 2004.

SCHUMER: And how do you remember that date so well?

COMEY: This was a very memorable period in my life; probably the most difficult time in my entire professional life. And that night was probably the most difficult night of my professional life. So it's not something I'd forget.

SCHUMER: Were you present when Alberto Gonzales visited Attorney General Ashcroft's bedside?

COMEY: Yes.

SCHUMER: And am I correct that the conduct of Mr. Gonzales and Mr. Card on that evening troubled you greatly?

COMEY: Yes.

SCHUMER: OK.

Let me go back and take it from the top.

You rushed to the hospital that evening. Why?

COMEY: I'm only hesitating because I need to explain why.

SCHUMER: Please. I'll give you all the time you need, sir.

COMEY: I've actually thought quite a bit over the last three years about how I would answer that question if it was ever asked, because I assumed that at some point I would have to testify about it.

The one thing I'm not going to do and be very, very careful about is, because this involved a classified program, I'm not going to get anywhere near classified information. I also am very leery of, and will not, reveal the content of advice I gave as a lawyer, the deliberations I engaged in. I think it's very important for the Department of Justice that someone who held my position not do that.

SCHUMER: In terms of privilege.

COMEY: Yes, sir.

SCHUMER: Understood.

COMEY: Subject to that, I -- and I'm uncomfortable talking about this...

SCHUMER: I understand.

COMEY: ... but I'll answer the question.

I -- to understand what happened that night, I, kind of, got to back up about a week.

SCHUMER: Please.

COMEY: In the early part of 2004, the Department of Justice was engaged -- the Office of Legal Counsel, under my supervision -- in a reevaluation both factually and legally of a particular classified program. And it was a program that was renewed on a regular basis, and required signature by the attorney general certifying to its legality.

And the -- and I remember the precise date. The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter.

And a week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter.

And at the end of that hour-long private session, he and I agreed on a course of action. And within hours he was stricken and taken very, very ill...

SCHUMER: (inaudible) You thought something was wrong with how it was being operated or administered or overseen.

COMEY: We had -- yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed.

The attorney general was taken that very afternoon to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.

And over the next week -- particularly the following week, on Tuesday -- we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail, which I will not go into here. Nor am I confirming it's any particular program.

That was Tuesday that we communicated that.

COMEY: The next day was Wednesday, March the 10th, the night of the hospital incident. And I was headed home at about 8 o'clock that evening, my security detail was driving me. And I remember exactly where I was -- on Constitution Avenue -- and got a call from Attorney General Ashcroft's chief of staff telling me that he had gotten a call...

SCHUMER: What's his name?

COMEY: David Ayers.

That he had gotten a call from Mrs. Ashcroft from the hospital. She had banned all visitors and all phone calls. So I hadn't seen him or talked to him because he was very ill.

And Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the president himself, but I don't know that for sure. It came from the White House. And it came through and the call was taken in the hospital.

So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and -- with whom I'd been discussing this particular matter and had been a great help to me over that week -- and told him what was happening. He said, "I'll meet you at the hospital right now."

Told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital.

I got out of the car and ran up -- literally ran up the stairs with my security detail.

SCHUMER: What was your concern? You were in obviously a huge hurry.

COMEY: 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.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly.

And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn't clear to me that he could. He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and the attorney general and maybe medical personnel in the room. No other Justice Department or government officials.

COMEY: Just the three of us at that point.

I tried to see if I could help him get oriented. As I said, it wasn't clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room.

I was shortly joined by the head of the Office of Legal Counsel assistant attorney general, Jack Goldsmith, and a senior staffer of mine who had worked on this matter, an associate deputy attorney general.

So the three of us Justice Department people went in the room. I sat down...

SCHUMER: Just give us the names of the two other people.

COMEY: Jack Goldsmith, who was the assistant attorney general, and Patrick Philbin, who was associate deputy attorney general.

I sat down in an armchair by the head of the attorney general's bed. The two other Justice Department people stood behind me. And Mrs. Ashcroft stood by the bed holding her husband's arm. And we waited.

And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there -- to seek his approval for a matter, and explained what the matter was -- which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, "But that doesn't matter, because I'm not the attorney general."

SCHUMER: But he expressed his reluctance or he would not sign the statement that they -- give the authorization that they had asked, is that right?


COMEY: Yes.

And as he laid back down, he said, "But that doesn't matter, because I'm not the attorney general. There is the attorney general," and he pointed to me, and I was just to his left.

The two men did not acknowledge me. They turned and walked from the room. And within just a few moments after that, Director Mueller arrived. I told him quickly what had happened. He had a brief -- a memorable brief exchange with the attorney general and then we went outside in the hallway.

SCHUMER: OK.

Now, just a few more points on that meeting.

First, am I correct that it was Mr. Gonzales who did just about all of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK.

And they made it clear that there was in this envelope an authorization that they hoped Mr. Ashcroft -- Attorney General Ashcroft would sign.

COMEY: In substance. I don't know exactly the words, but it was clear that's what the envelope was.

SCHUMER: And the attorney general was -- what was his condition? I mean, he had -- as I understand it, he had pancreatitis. He was very, very ill; in critical condition, in fact.

COMEY: He was very ill. I don't know how the doctors graded his condition. This was -- this would have been his sixth day in intensive care. And as I said, I was shocked when I walked in the room and very concerned as I tried to get him to focus.

SCHUMER: Right.

OK. Let's continue.

What happened after Mr. Gonzales and Card left? Did you have any contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up to us and said that I had an urgent call in the command center, which was right next door. They had Attorney General Ashcroft in a hallway by himself and there was an empty room next door that was the command center.

And he said it was Mr. Card wanting to speak to me.

COMEY: I took the call. And Mr. Card was very upset and demanded that I come to the White House immediately.

I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.

He replied, "What conduct? We were just there to wish him well."

And I said again, "After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States."

SCHUMER: That would be Mr. Olson.

COMEY: Yes, sir. Ted Olson.

"Until I can connect with Mr. Olson, I'm not going to meet with you."

He asked whether I was refusing to come to the White House. I said, "No, sir, I'm not. I'll be there. I need to go back to the Department of Justice first."

And then I reached out through the command center for Mr. Olson, who was at a dinner party. And Mr. Olson and the other leadership of the Department of Justice immediately went to the department, where we sat down together in a conference room and talked about what we were going to do.

And about 11 o'clock that night -- this evening had started at about 8 o'clock, when I was on my way home. At 11 o'clock that night, Mr. Olson and I went to the White House together.

SCHUMER: Just before you get there, you told Mr. Card that you were very troubled by the conduct from the White House room (ph), and that's why you wanted Mr. Olson to accompany you.

Without giving any of the details -- which we totally respect in terms of substance -- just tell me why. What did you tell him that so upset you? Or if you didn't tell him just tell us.

COMEY: I was very upset. I was angry. 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.

I thought he had conducted himself, and I said to the attorney general, in a way that demonstrated a strength I had never seen before. But still I thought it was improper.

And it was for that reason that I thought there ought to be somebody with me if I'm going to meet with Mr. Card.

SCHUMER: Can you tell us a little bit about the discussion at the Justice Department when all of you convened? I guess it was that night.

COMEY: I don't think it's appropriate for me to go into the substance of it. We discussed what to do. I recall the associate attorney general being there, the solicitor general, the assistant attorney general in charge of the Office of Legal Counsel, senior staff from the attorney general, senior staff of mine. And we just -- I don't want to reveal the substances of those...

SCHUMER: I don't want you to reveal the substance.

They all thought what you did -- what you were doing was the right thing, I presume.

COMEY: I presume. I didn't ask people. But I felt like we were a team, we all understood what was going on, and we were trying to do what was best for the country and the Department of Justice. But it was a very hard night.

SCHUMER: OK.

And then did you meet with Mr. Card?

COMEY: I did. I went with Mr. Olson driving -- my security detail drove us to the White House. We went into the West Wing. Mr. Card would not allow Mr. Olson to enter his office. He asked Mr. Olson to please sit outside in his sitting area. I relented and went in to meet with Mr. Card alone. We met, had a discussion, which was much more -- much calmer than the discussion on the telephone.

After -- I don't remember how long, 10 or 15 minutes -- Mr. Gonzales arrived and brought Mr. Olson into the room. And the four of us had a discussion.

SCHUMER: OK.

And was Mr. -- were you and Mr. Card still in a state of anger at one another at that meeting, or is it a little calmer, and why?

COMEY: Not that we showed.

SCHUMER: Right.

COMEY: It was much more civil than our phone conversation, much calmer.

SCHUMER: Why? Why do you think?

COMEY: I don't know. I mean, I had calmed down a little bit. I'd had a chance to talk to the people I respected. Ted Olson I respect enormously.

SCHUMER: Right. OK.

Was there any discussion of resignations with Mr. Card?

COMEY: Mr. Card was concerned that he had heard reports that there were to be a large number of resignations at the Department of Justice.

SCHUMER: OK. OK.

And the conversations, the issue, whatever it was, was not resolved.

COMEY: Correct. We communicated about it. I communicated again the Department of Justice's view on the matter. And that was it.

SCHUMER: Right.

And you stated that the next day, Thursday, was the deadline for reauthorization of the program, is that right?

COMEY: Yes, sir.

SCHUMER: OK.

Can you tell us what happened the next day?

COMEY: The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.

SCHUMER: OK.

And that was the day, as I understand it, of the Madrid train bombings.

COMEY: Thursday, March 11th, was the morning of the Madrid train bombings.

SCHUMER: And so, obviously, people were very concerned with all of that.

COMEY: Yes. It was a very busy day in the counterterrorism aspect.

SCHUMER: Yet, even in light of that, you still felt so strongly that you drafted a letter of resignation.

COMEY: Yes.

SCHUMER: OK.

And why did you decide to resign?

COMEY: I just believed...

SCHUMER: Or to offer your resignation, is a better way to put it?

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.

SCHUMER: Right. OK.

Now, let me just ask you this. And this obviously is all troubling.

As I understand it, you believed that others were also prepared to resign, not just you, is that correct?

COMEY: Yes.

SCHUMER: OK.

Was one of those Director Mueller?

COMEY: I believe so. You'd have to ask him, but I believe so.

SCHUMER: You had conversations with him about it.

COMEY: Yes.

SCHUMER: OK.

How about the associate attorney general, Robert McCallum?

COMEY: I don't know. We didn't discuss it.

SCHUMER: How about your chief of staff?

COMEY: Yes. He was certainly going to go when I went.

SCHUMER: Right.

How about Mr. Ashcroft's chief of staff?

COMEY: My understanding was that he would go as well.

SCHUMER: And how...

COMEY: I should say...

SCHUMER: Please.

COMEY: ... to make sure I'm accurate, I...

SCHUMER: This is your surmise, not...

COMEY: Yes.

I ended up agreeing -- Mr. Ashcroft's chief of staff asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me. He was very concerned that Mr. Ashcroft was not well enough to understand fully what was going on. And he begged me to wait until -- this was Thursday that I was making this decision -- to wait til Monday to give him the weekend to get oriented enough so that I wouldn't leave him behind, was his concern.

SCHUMER: And it was his view that Mr. Ashcroft was likely to resign as well?

COMEY: Yes.

SCHUMER: So what did you do when you heard that?

COMEY: I agreed to wait. I said that what I would do is -- that Friday would be last day. And Monday morning I would resign.

SCHUMER: OK.

Anything else of significance relevant to this line of questioning occur on Thursday the 11th, that you can recall?

COMEY: No, not that I recall.

SCHUMER: Thank you.

Now, let's go to the next day, which was March 12. Can you tell us what happened then?

COMEY: I went to the Oval Office -- as I did every morning as acting attorney general -- with Director Mueller to brief the president and the vice president on what was going on on Justice Department's counterterrorism work.

We had the briefing. And as I was leaving, the president asked to speak to me, took me in his study and we had a one-on-one meeting for about 15 minutes -- again, which I will not go into the substance of. It was a very full exchange. And at the end of that meeting, at my urging, he met with Director Mueller, who was waiting for me downstairs.

He met with Director Mueller again privately, just the two of them. And then after those two sessions, we had his direction to do the right thing, to do what we...

SCHUMER: Had the president's direction to do the right thing?

COMEY: We had the president's direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.

And so we then set out to do that. And we did that.

SCHUMER: OK.

So let me just (inaudible) -- this is an amazing story, has an amazing pattern of fact that you recall.

SPECTER: Mr. Chairman, could you give us some idea when your first round will conclude?

SCHUMER: As soon as I ask a few questions here. Fairly soon.

(OFF-MIKE)

SCHUMER: Yes.

And, Senator Specter, you will get the same amount of time.

SCHUMER: I thought with Mr. Comey's telling what happened...

(CROSSTALK)

SPECTER: Just may the record show that you're now 16 minutes and 35 seconds over the five minutes and...

SCHUMER: I think the record will show it.

SPECTER: Well, it does now.

(LAUGHTER)

SCHUMER: OK, thank you.

And I think most people would think that those 16:35 minutes were worth hearing.

SPECTER: Well, Mr. Chairman, we do have such a thing as a second round, and there are a lot of senators waiting...

SCHUMER: Yes, OK.

Let me ask you these few questions...

SPECTER: ... including a Republican.

SCHUMER: I'm glad you're here, Senator Specter. I know you're concerned with the issue.

SPECTER: Lonely, but here.

(LAUGHTER)

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded -- the department as a whole -- was unable to be certified as to its legality. And that was my concern.

SCHUMER: OK.

And you also believe -- and you had later conversations with Attorney General Ashcroft when he recuperated, and he backed your view?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would have resigned had it come to that?

COMEY: No.

SCHUMER: OK.

But he backed your view over that what was being done, or what was attempting to being done, going around what you had recommended, was wrong, against the law?

COMEY: Yes.

And I already knew his view from the hour we had spent together going over it in great detail a week before the hospital incident.

SCHUMER: Yes.

And the FBI director, Mueller, backed your view over that of Mr. Gonzales as well -- is that right? -- in terms of whether the program could continue to be implemented the way Counsel Gonzales wanted it to be.

COMEY: The only reason I hesitate is it was never Director Mueller's job or position to be drawing a legal conclusion about the program; that he was very supportive to me personally. He's one of the finest people I've ever met and was a great help to me when I felt a tremendous amount of pressure and felt a bit alone at the Department of Justice.

But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office of Legal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on that issue. And it was largely OLC, the Office of Legal Counsel's work, that I was relying upon in drawing my -- in making my decision.

SCHUMER: OK. Just two other questions.

Have you ever had the opportunity to recall these events on the record in any other forum?

COMEY: No.

SCHUMER: OK. And...

COMEY: I should...

SCHUMER: Go ahead.

COMEY: I was interviewed by the FBI and discussed these events in connection with a leak investigation the FBI was conducting.

SCHUMER: And you gave them these details then.

COMEY: Yes.

SCHUMER: Thank you.

COMEY: But not -- by forum I've never testified about it.

SCHUMER: And after you stood your ground in March of 2004, did you suffer any recriminations or other problems at the department?

COMEY: I didn't. Not that I'm aware of.

SCHUMER: OK.

Well, let me just say this, and then I'll call on Senator Specter who can have as much time as he thinks is appropriate.

The story is a shocking one. It makes you almost gulp.

And I just want to say, speaking for myself, I appreciate your integrity and fidelity to rule of law. And I also appreciate Attorney General Ashcroft's fidelity to the rule of law as well, as well as the men and women who worked with you and stuck by you in this.

When we have a situation where the laws of this country -- the rules of law of this country are not respected because somebody thinks there's a higher goal, we run askew of the very purpose of what democracy and rule of law are about.

SCHUMER: And this -- again, this story makes me gulp.

Senator Specter?

SPECTER: May the record now show that we're 21 minutes and 22 seconds beyond the five-minute allocation.

And I raise it not to in any way suggest that the questioning hasn't been very important, but only to suggest that we have a practice for having a five-minute round. And it is exceeded on some occasions. I've only been here 27 years; I can't remember it being exceeded by about 23 minutes.

And we do have second rounds. And we do have eight -- seven Democrats here. It is now 9:48 -- 10:48. And at the start of this hearing I asked my colleagues among the Republicans to join me here.

I repeat that request now, since it's televised -- internally, at least -- that my colleagues should know that there are seven Democrats here who will all have turns asking questions. And it would be appropriate to have a little balance here, if some Republicans would show up to participate in this hearing. It would be helpful if we had some balance, if some other Republicans would show up to participate in this hearing.

Mr. Comey, I join Senator Schumer in commending you for what you did here. The terrorist surveillance program has been the subject of quite a number of hearings in this committee: strenuous efforts to bring the issue before the Foreign Intelligence Surveillance Court, efforts at changing legislation; some of it is now pending, co- sponsored by Senator Feinstein and myself. The matter is wending its way through the federal courts, and it's the 6th Circuit now.

So this is a very important, substantive matter.

SPECTER: And as the acting attorney general, you were doing exactly what you should do in standing up for your authority and to stand by your guns and to do what you thought was right.

It has some characteristics of the Saturday Night Massacre, when the other officials stood up and they had to be fired in order to find someone who would -- deputy attorney general and others would not fire the special prosecutor. So that was commendable.

When you finally got to the place where the buck doesn't stop, when you got to the president -- as I understand your testimony -- the president told you to do what you thought was right. Is that correct?

COMEY: Yes, sir.

SPECTER: So the president backed you up. And it was necessary to make changes in the terrorist surveillance program to get the requisite certification by the acting attorney general -- that is you?

COMEY: And I may be being overly cautious, but I'm not comfortable confirming what program it was that this related to.

And I should be clear. The direction -- as I said, I met with the president first, the Director Mueller did.

COMEY: And it was Director Mueller who carried to me the president's direction to do what the Department of Justice thinks is right to get this where the department believes it ought to be. And we acted on that direction.

SPECTER: Director Mueller told you to -- the president said to do what you thought was right?

COMEY: Correct.

SPECTER: Well, how about what the president himself told you?

COMEY: I don't want to get into what -- the reason I hesitate, Senator Specter, is the right thing was done here, in part -- in large part because the president let somebody like me and Bob Mueller meet with him alone.

And if I talk about that meeting, I worry that the next president who encounters this is not going to let the next me get close to them to talk about something this important.

So I'm -- I want to be very careful that I don't talk about what the president and I talked about.

I met with the president. We had a full and frank discussion, very informed. He was very focused.

Then Director Mueller met with the president alone. I wasn't there.

Director Mueller carried to me the president's direction that we do what the Department of Justice wanted done to put this on a sound legal footing.

SPECTER: So you met first with the president alone for 15 minutes?

COMEY: Yes, sir.

SPECTER: And then Director Mueller met separately with the president for 15 minutes?

COMEY: I don't remember exactly how long it was. It was about the same length as my meeting. I went down and waited for him, as he...

SPECTER: And then Director Mueller, as you've testified, said to you, the president told Director Mueller to tell you to do what the Department of Justice thought was right?

COMEY: Correct.

SPECTER: Well -- but you won't say whether the president told you to do what the Department of Justice said was right?

COMEY: Yes, I...

SPECTER: You're not slicing hair. There's no hair there.

COMEY: You're a good examiner.

And that...

SPECTER: Well, thank you.

COMEY: Yes. I -- the president and I -- I don't think the conversation was finished. We discussed the matter in some detail. And then I urged him to talk to Bob Mueller about it.

And I don't know the content of Director Mueller's communication with him, except that Director Mueller -- the president didn't give me that -- I can answer that question.

The president didn't give me that direction at the end of our 15 minutes.

SPECTER: He did not?

COMEY: He did not. Instead, he said, "I'll talk to Director Mueller," as I had suggested.

Director Mueller came and met with him, then Director Mueller came to me and said that, "The president told me that the Department of Justice should get this where it wants to be, to do what the department thinks is right."

And I took that mandate and set about to do that, and accomplished that.

SPECTER: I thought you testified, in response to Senator Schumer's questions, that after meeting with the president for 15 minutes, he told you to do what you thought was right.

COMEY: If I did, I misspoke, because that direction came from the president to Director Mueller to me.

SPECTER: Well, when you had the discussions with Chief of Staff Card, what did he say to you by way of trying to pressure you, if, in fact, he did try to pressure you, to give the requisite certification?

COMEY: Again, I'm reluctant to talk about the substance of those kind of deliberative discussions. We discussed...

SPECTER: And I'm not asking about the substance, carefully not. I'm going to, but not yet.

What did he say which constituted what you thought was pressure?

COMEY: I don't know that he tried to pressure me, other than to engage me on the merits and to make clear his strong disagreement with my conclusion.

SPECTER: So then Mr. Card ultimately left it up to you to decide whether to give the certification or not?

COMEY: I don't know that he left it up to me. I had already made a decision and communicated it on that Tuesday, that I was not going to. And it didn't change in the course of my discussions with Mr. Card.

SPECTER: Did not change?

COMEY: Did not change.

SPECTER: Well, he didn't threaten to fire you, did he? I'm going to have to lead the witness now, Mr. Comey.

COMEY: Right.

SPECTER: I'm -- I haven't led you up until now. And now I'm going to have to lead you.

COMEY: That's fine.

SPECTER: He didn't threaten to fire you?

COMEY: No, he didn't.

And Mr. Card, as I said, was very civil to me in our face-to-face meeting. The only time...

SPECTER: Well, you can suggest being fired and be civil about it.

COMEY: Right.

Either civilly or uncivilly, he never suggested that to me.

SPECTER: Attorney General Gonzales could be fired in a civil way. No incivility in suggesting you're going to be replaced as acting attorney general.

Well, all right then. That substance -- I don't want to question you as long as Senator Schumer did, notwithstanding my rights here. But the long and short of it was, he didn't threaten you.

COMEY: No, sir. I didn't feel threatened. Nor did he say anything that I thought could reasonably be read...

SPECTER: And when you talked to White House Counsel Gonzales, did he try to pressure you to reverse your judgment?

COMEY: No.

He disagreed, again, on the merits of the decision. And we had engaged on that, had full discussions about that.

But he never tried to pressure me, other than to convince me that I was wrong.

SPECTER: Well, Mr. Comey, did you have discussions with anybody else in the administration who disagreed with your conclusions?

COMEY: Yes, sir.

SPECTER: Who else?

COMEY: Vice president.

SPECTER: Anybody else?

COMEY: Members of his staff.

SPECTER: Who on his staff?

COMEY: Mr. Addington disagreed with the conclusion. And I'm sure there were others who disagreed, but...

SPECTER: Well, I don't want to know who disagreed. I want to know who told you they disagreed.

COMEY: OK.

SPECTER: Addington?

COMEY: Mr. Addington. The vice president told me that he disagreed. I don't remember any other White House officials telling me they disagreed.

SPECTER: OK. So you've got Card, Gonzales, Vice President Cheney and Addington who told you they disagreed with you.

COMEY: Yes, sir.

SPECTER: Did the vice president threaten you?

COMEY: No, sir.

SPECTER: Did Addington threaten you?

COMEY: No, sir.

SPECTER: So all these people told you they disagreed with you?

Well, why in this context, when they say they disagreed with you and you're standing by your judgment, would you consider resigning? You were acting attorney general. They could fire you if they wanted to. The president could replace you. But why consider resigning?

You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney general, and that was that. Why consider resigning?

COMEY: Not because of the way I was treated but because I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for.

SPECTER: When they said you could find no legal basis for?

COMEY: I had reached a conclusion that I could not certify as...

SPECTER: Well, all right, so you could not certify it, so you did not certify it.

But why resign? You're standing up to those men. You're not going to certify it. You're the acting attorney general. That's that.

COMEY: Well, a key fact is that they went ahead and did it without -- the program was reauthorized without my signature and without the Department of Justice. And so I believed that I couldn't stay...

SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?

COMEY: Yes.

SPECTER: So it went forward illegally.

COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.

SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?

COMEY: I believed so.

SPECTER: Then it was going forward illegally.

COMEY: Well, the only reason I hesitate is that I'm no presidential scholar.

But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law.

And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.

SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal.

The point that I'm trying to determine here is that it was going forward even though it was illegal.

COMEY: And I know I sound like I'm splitting hairs, but...

SPECTER: No, I don't think there's a hair there.

COMEY: Well, something was going forward without the Department of Justice's certification as to its legality. It's a very complicated matter, and I'm not going to go into what the program was or what the dimensions of the program...

SPECTER: Well, you don't have to.

If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.

There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.

So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality."

And given that, I just -- I couldn't, in good conscience, stay.

SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.

I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

SPECTER: OK. Then it wasn't illegal.

COMEY: That's why I hesitated when you used the word "illegal."

SPECTER: Well, well, OK.

Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal.

It's not illegal to violate custom, is it?

COMEY: Not so far as I'm aware.

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was.

The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK.

Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.

COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- 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.

I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.

SPECTER: OK.

I will not ask you -- I have a rule never to ask the same question more than four times...

(LAUGHTER)

... so I will not ask you again whether necessarily from your testimony the conclusion is that what the president did was legal -- not illegal.

Let me move on. I only have 35 minutes left.

(LAUGHTER)

How long did you continue to serve as deputy attorney general after this incident?

COMEY: Until August of 2005, so almost a year and a half, 16 months.

SPECTER: And during the course of that continued service, you got along OK with the president and the vice president and Card and Addington and all the rest of those fellows in the White House?

COMEY: I think so. I mean, we didn't have much contact with them other than professional matters. But I think so.

SPECTER: But they weren't out to get you because you stood out to them?

COMEY: I hope not. I don't have any reason to believe...

SPECTER: Well, never mind hoping. They didn't do anything to be out to get you or to make your life uncomfortable, or make it difficult for you to perform your duties as deputy attorney general?

COMEY: No.

SPECTER: There was some speculation that -- well, I'll eliminate the word "speculation."

Did you have any sense that you were not considered to be permanent attorney general on Mr. Ashcroft's departure because of your having stood up to the White House on this issue?

COMEY: No.

And I don't have any reason to believe I was ever considered. But I certainly have no reason to believe that there was any connection between consideration of who would be the next attorney general and this matter.

SPECTER: Well, on this issue, Mr. Comey, I commend you again. You did exactly the right thing.

SPECTER: And I think the president did the right thing. In effect, he overruled Card and he overruled Vice President Cheney and he overruled Addington and he overruled Gonzales. And when it came to him -- came to the president's desk where the buck stops he said to Mueller to tell you, "Follow your conscience. Do the right thing." And that was that.

Mr. Comey, it's my hope that we will have a closed session with you to pursue the substance of this matter further. Because your standing up to them is very important, but it's also very important what you found on the legal issue on this unnamed subject, which I infer was the terrorist surveillance program. And you're not going to comment about it. I think you could.

I think you could even tell us what the legalisms were. Doesn't involve a matter of your advice or what the president told you, et cetera.

But I'm going to discuss it with Senator Leahy later and see about pursuing that question to try to find out about it.

Now, Mr. Comey, on to the subject of the hearing. You have been reported as commenting on a number of U.S. attorneys who were asked to resign. You thought they were doing a good job. One was U.S. Attorney David (sic) Bogden of Nevada.

What judgment did you -- do you have as to his capabilities as U.S. attorney?

COMEY: Dan Bogden was an excellent U.S. attorney. He was a career guy who had become U.S. attorney, and I thought very highly of him.

SPECTER: Do you have any insights as to why he was asked to resign?

COMEY: I don't. I've read things in the paper, but I certainly have no personal knowledge of why he was asked to resign. When I left in August of 2005, I couldn't have thought of a reason why he should be asked to resign.

SPECTER: And as to John McKay, do you have a judgment as to the quality, the competency of his performance?

COMEY: Yes. Again, it was excellent in my experience. I had worked with him, as with the others, as a peer when I was U.S. attorney in Manhattan and then as the deputy attorney general. So I had a very positive sense of John McKay.

SPECTER: And as to Paul Charlton, Arizona U.S. attorney, what is your view as to his competence?

COMEY: The same. I don't want to make it sound like I love everybody, but I did like him a great deal.

(LAUGHTER)

He was very strong.

SPECTER: Well, since you don't want to sound like you love everybody, anybody you didn't love who you thought should have been replaced?

(LAUGHTER)

SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN: Outside of members of the committee.

COMEY: There was one U.S. attorney...

(CROSSTALK)

SPECTER: I'd like to ask you about that now that Senator Leahy has opened the door. Which members of the committee don't you love?

(LAUGHTER)

COMEY: You're asking Senator Leahy, I hope.

SPECTER: Start with the chairman.

(LAUGHTER)

LEAHY: Careful. We may be bringing (ph) the clock back again.

SPECTER: What you think of Charlton?

COMEY: Very strong, very strong U.S. attorney.

SPECTER: And David Iglesias, U.S. attorney for New Mexico?

COMEY: Same thing. I had dealt with him quite a bit, both as a peer and as his supervisor, and had a high opinion of him. I thought he did a very good job.

SPECTER: What did you make of Kyle Sampson's testimony that he had recommended calling for the resignation of Peter Fitzgerald?

COMEY: Of Patrick Fitzgerald.

SPECTER: Patrick Fitzgerald. Peter Fitzgerald was the senator.

(UNKNOWN): No relation.

SPECTER: No relation.

COMEY: I only know about that what I read in the newspaper. I was surprised by it, would be a fair description.

SPECTER: And what did you think of the competency of Kyle Sampson?

COMEY: I thought Kyle was very smart. My dealings with him had always been pleasant. He seemed to work very, very hard.

SPECTER: What did you think of the competency or smarts of Kyle Sampson after you heard he wanted to ask for the resignation of Patrick Fitzgerald?

COMEY: Well, I don't think that was an exercise of good judgment, if it's something he really meant. It...

SPECTER: Can you give us an illustration of an exercise in good judgment by Kyle Sampson?

I withdraw that question.

Can you give us an example of an exercise of good judgment by Alberto Gonzales?

Let the record show a very long pause.

COMEY: It's hard -- I mean, I'm sure there are examples. I'll think of some.

I mean, it's hard when you look back. We worked together for eight months.

SPECTER: That's a famous statement of President Eisenhower about Vice President Nixon: "Say something good." "Give me two weeks."

COMEY: Right.

I -- in my experience with Attorney General Gonzales, he was smart and engaged. And I had no reason to question his judgment during our time together at the Department of Justice.

We had a good working relationship. He seemed to get issues. I would make a recommendation to him. He would discuss it with me and make a decision.

As I sit here today, I'll probably five minutes from now think of an example. But I did not have reason to question his judgment as attorney general.

SPECTER: Are you sufficiently familiar with what happened in the issue of the U.S. attorneys resignations to give an evaluation of Attorney General Gonzales' statement that he was no involved in discussions or deliberations, in the context of being contradicted by three of his top deputies and the documentary evidence on the e-mails?

COMEY: I am probably more versed in this than the average person, because I've read what's in the newspaper and looked at some of the documents online.

But I gather he's corrected that statement that he originally made about not being involved in deliberations or discussions.

But I'm not -- I don't know the facts as well as members of this committee, and haven't studied it. So I don't think I have a...

SPECTER: No, I don't think he has corrected that. I think he continues to say that he was involved in a -- his words are "limited" -- quote, "limited," unquote.

SPECTER: That's what he has said.

I think that -- and I've said this to Mr. Gonzales privately and publicly -- that if he would tell us what the reasons were for asking these U.S. attorneys to resign, that it would shed considerable light on what's going on here, on how the program got started, and what the aims of the program were, and what his involvement was.

That can -- that can all be -- this proceeding is still in midstream. He can recant all of what he's said and come forward.

Well, Mr. Chairman, I'm going to yield the balance of my minutes. Thank you.

SCHUMER: Thank you, Mr. Chairman. And you went about, I think, a minute more than I did.

SPECTER: Oh, no I didn't. I'm at 21:35.

SCHUMER: OK. I just...

LEAHY: So we can get on to others, I'm also -- as a member of this committee, let me just go back to the time. I'm not going to use a great deal of time so that...

SPECTER: Senator Schumer and I didn't either, Senator Leahy.

LEAHY: ... so that -- God love you -- so that others here can.

Just one question comes to mind.

Senator Specter spoke to you about legal or illegal. Did it comply with the FISA law?

COMEY: If I -- I've tried, Senator, not to confirm that I'm talking about any particular program. I just don't feel comfortable in an open forum...

LEAHY: OK.

Then on that -- with that answer, I think I agree with -- if I could have Senator Specter's attention just for a moment. With that answer -- and I can understand. I'm well aware of the program, well aware of what happened. And I can understand your reluctance -- very appropriately, your reluctance to answer that specifically.

We will have a closed-door hearing on this. Senator Specter and I are about to have a briefing on aspects of this.

LEAHY: I am very, very troubled by what the Department of Justice is doing today -- not on your watch, Mr. Comey, but they're doing today. We have several members of the Intelligence Committee on this committee on both sides. And they will also be looking at it.

Mr. Comey, I have a lot of respect for you. I have less and less respect for the way the Department of Justice is being handled today. This is a dysfunctional Department of Justice. It is being run like a political arm of the White House. That is highly inappropriate.

I've been here for 32 years. I've seen good attorneys general and poor attorneys general. I have always thought that there would at least be the understanding that the professionals in the Department of Justice have to be allowed to do a professional job. And when I see them being overridden time and time again.

Now, I realize there are some things you cannot go into in this session. But you know and I know that there is the overriding of the professional judgment of good men and women in that department to do things that are not proper. And I think this is wrong.

One of my first experiences in the Department of Justice was as a young law clerk working while a student at Georgetown here meeting with the then-attorney general. The then-attorney general was a close to the president as anyone could. He was his brother. This was Attorney General Robert Kennedy.

But I remember what he said to several of the students who were there, because he was hoping we were a cadre, because of our grades and whatnot, he wanted to recruit for the Department of Justice. And he emphasized over and over again on significant matters -- civil rights, criminal, (inaudible) areas and whatnot -- that neither the White House nor his brother would be allowed to influence the professional judgment.

That always stuck in my mind.

LEAHY: And I've seen that happen over and over again. We saw it with Elliot Richardson and Archibald Cox. We saw it with you.

And I am very, very frustrated. I won't go into further questions, because the questions I do want to ask you will be in closed session.

But I hope -- I hope somebody will wake up at the White House at the terrible, terrible precedent they are starting and have started. And I hope whoever the next president is will make a solemn vow never, never, never to allow this politicization of the Department of Justice. Because it hurts every one of us.

It's not the secretary of justice. It's not a member of the president's staff that should be running that. It is the attorney general of the United States. And this attorney general is doing an abysmal job.

SCHUMER: Thank you, Mr. Chairman.

Senator Kohl?

Senator Feinstein was next. I apologize.

FEINSTEIN: Thank you very much, Mr. Chairman.

And thank you very much, Mr. Comey.

I read the transcript of your testimony before the House. And it's clear that you're a very straight shooter and very well respected. And I, for one, really appreciate your point of view.

If I can, I'd like to go back to the event in the hospital room for just a minute. You felt -- and you were presented with something that you had to sign to certify a certain program. That program was initially done outside of the existing law, which is the Foreign Intelligence Surveillance Act, which provides -- which says it's the exclusive authority for all electronic surveillance.

The president used his Article II powers. He said he used the authorization to use military force as the definitive basis for his action, to essentially move outside the law.

However, you were faced -- and the president said when this all came to light that he asked the program -- asked that the program be authorized every 45 days, or certified by the attorney general.

What did you actually have to sign to certify it? What were you confronted with?

COMEY: Senator, I want to be careful in this forum, again, that I'm not confirming the existence of any particular program or that this dispute...

FEINSTEIN: I'm not asking you to. I'm asking you, what piece of paper did you have to sign?

COMEY: It was a signature line on a presidential order.

FEINSTEIN: OK. All right.

And you said that the program was later changed so that it could be signed. But it went ahead at that time without your certification on it.

COMEY: Yes.

FEINSTEIN: And what was the elapsed period of time from that meeting, the denial of DOJ to certify the program and the time when it was essentially certified?

COMEY: It was reauthorized on Thursday, March the 11th, without the department's -- without my signature, without the department's approval.

And it was the next day -- so less than 24 hours later -- that we received the direction from the president to make it right.

And then we set about -- I don't remember exactly how long it was -- over the next few weeks making changes so that it accorded with our judgment about what could be certified as to legality.

And so it was really only that period from Thursday, when it was reauthorized, until I got the direction from the president the next day that it operated outside the Department of Justice's approval.

FEINSTEIN: For approximately two weeks?

COMEY: I don't remember exactly. It was two or three weeks I think that it took us to get the analysis done and make the changes that needed to be made.

FEINSTEIN: And then who signed for DOJ?

COMEY: It was either the attorney general, Ashcroft, or myself who signed. I may have signed that first one after the hospital incident.

FEINSTEIN: OK.

And you then became satisfied that the program conformed with what, essentially?

COMEY: That it was operated consistently with the Office of Legal Counsel's judgment about what was lawful. So we were in a position -- given OLC's opinion, the attorney general and I were in a position to certify the program as to its legality.

FEINSTEIN: Mr. Chairman, it would be very interesting if we could obtain those legal opinions. Because the program we're talking about was originally done outside of law. The executive order of the president was really the prevailing authority.

But even so, I'm a little puzzled because the program was changed. And I'd be very interested in what the legal advise on that program was if that would be possible for us to request.

SCHUMER: I'm sure if the senator makes the request we can make it part of the record.

FEINSTEIN: Fine, I've made that request...

(CROSSTALK)

SCHUMER: I think to the Office of Legal Counsel, which had already stated its opinion on this particular issue.

(CROSSTALK)

FEINSTEIN: Thank you. Thank you.

If I can, I'd like to move on to the United States attorneys.

To the best of your knowledge, has there been any time in the history of our country when as many U.S. attorneys have been fired at one time?

COMEY: The only other incident I know of was during the change of administrations from Bush I to President Clinton's administration.

FEINSTEIN: Which is fairly typical...

(CROSSTALK)

COMEY: Right, it was a change out...

(CROSSTALK)

FEINSTEIN: With a change. But I'm talking during the term of a president has there been any time when a number of U.S. attorneys had been selected and summarily fired without cause?

COMEY: I'm not aware of a similar-size removal of U.S. attorneys.

FEINSTEIN: Thank you very much.

As you know, we've had the EARS reports. Are you familiar with those reports?

COMEY: Yes.

FEINSTEIN: And they have described the performance of U.S. attorneys -- and I gather there's a panel of people that go in and put these reports together. They have subsequently been -- we've been told that they're very, very perfunctory.

Are they, in fact, a document that's utilized within DOJ?

COMEY: Oh, yes.

(LAUGHTER)

And they're not perfunctory. They come -- big team of people.

When I was U.S. attorney in New York, I think 30 or more people came from all over the country -- experienced people, civil lawyers and prosecutors -- and they basically live with you in your office for a couple of weeks and go stem to stern, inspect the whole place. There's an out-briefing.

It's very much like an audit by a big accounting firm, except they audit not just your numbers, but your conduct of cases and your priorities. So it's from top to bottom, and then they issue a detailed report.

FEINSTEIN: Well, let me ask you this question: How then could they be fired for performance reasons if at least seven -- excuse me -- six out of the seven terminated on December 7th had excellent EARS reports?

COMEY: I don't know. I was not aware at the time I left, in August of 2005, of performance-related issues with most of these U.S. attorneys.

FEINSTEIN: And you've said that. You said that today. You said that in your testimony before the House. And I appreciate it.

Can you ever remember any discussion where an individual U.S. attorney's loyalty or political instincts were questioned?

COMEY: I don't remember ever discussing or having it discussed in my presence the loyalty or political instincts of a U.S. attorney, no.

FEINSTEIN: Now, there was apparently a list put together.

FEINSTEIN: And Mr. Sampson had indicated that he was the aggregator of the list. He put the list together.

But everyone that we've asked in the higher levels of the department have said they did not put the names on the list. Mr. Battle, Mr. Ellston, Mr. Sampson -- virtually everyone we have asked have denied placing a name on that list.

If that is in fact the case, where would you surmise the list would come from?

COMEY: I wouldn't know. It came from someplace, but I don't know from where.

FEINSTEIN: I'd like to just clear the air with one thing.

You had two meetings with Carol Lam, I believe -- one about the Project Neighborhood program, the other about gun cases. Were you satisfied with her responses to your questions?

COMEY: Yes.

I think I had one meeting that was about Project Safe Neighborhoods, which was the name given to our gun program. And I think it was on the telephone. I spoke to -- I think by telephone -- to each of the 10 U.S. attorneys whose districts on a per capita basis were at the bottom end of our gun prosecutions.

And I thought she understood. And, again, I wasn't telling her to do cases for the sake of doing cases. I was saying, "This is important. I think this saves lives. If there's a difference you can make that the local prosecutors are not making in your jurisdiction, look for an opportunity to make it."

And she said she got it. And that was the end of it.

FEINSTEIN: Were any of the other 10 people with whom you communicated fired?

COMEY: No, not to my knowledge.

FEINSTEIN: So if someone had an excellent performance report, it's very difficult for me to figure out a reason other than dissatisfaction with a case they were either going to file or not file if the severance is not performance-related.

Would that be a fair assumption on my part?

COMEY: I suppose so. Right. If there's no reasons that are apparent -- performance-related reasons -- it's hard to understand why.

FEINSTEIN: Thank you very much, Mr. Comey. Appreciate it.

Thank you.

SCHUMER: Senator Kohl?

KOHL: Thank you, Mr. Chairman.

Mr. Comey, you're a person of course who has been very close to law enforcement in our country for many years. And obviously, you're here today as a person who was the second-ranking person in the department from 2003 to 2005.

KOHL: And no question about your concern for the fair administration of justice in our country. And with the kind of experience you have, your opinions matter more than the opinions of most others. And I'm sure you've thought about this; would you give us your opinion?

Would our country be well-served if we could start fresh tomorrow with an attorney general who was not in any way as tainted as this present attorney general? Would we be better off as a country?

You must have an opinion. Would you care to share that opinion with us?

COMEY: I would very much like not to.

(LAUGHTER)

KOHL: But would you, please?

COMEY: I would hope -- there are a lot of things I miss about government. A lot of things I love about being a private citizen.

I would hope you wouldn't care what my opinion is.

I appreciate what you said, Senator. I'm not here to dump on Attorney General Gonzales. I...

KOHL: Well, this isn't a question of jumping on -- we're talking about our country and its future and the importance of law, the importance of the Department of Justice. And you have been closer than most.

And you are here to serve your country; that's why you're here today.

And that's a very important question, obviously. And your opinion matters much more than most, because of who you are and your experience.

And I'm sure, or I presume, you do have an opinion. Would you share that opinion with us today?

COMEY: I do have an opinion. I would prefer not to share it. I'm just not sure that -- it makes me very uncomfortable to express my opinion about something, especially now that I'm outside of government and that I have not followed this as closely as many people have.

I have formulated an opinion, but I would ask the senator's indulgence not to make me give it. I just don't think that's my place.

KOHL: Well, I'm concluding -- and correct me if I'm incorrect -- I'm concluding that your unwillingness to express an opinion that you do say -- you say that you have -- is an indication that you believe we would be better served. I think that's a clear inference from what you're saying.

COMEY: I appreciate that, Senator.

COMEY: If I could, I'd like not to offer that.

KOHL: To me, you have expressed that opinion. I mean, without having expressed it, you expressed it.

Mr. Comey, when you testified in the House a few weeks ago, you were asked about the U.S. attorney for the Eastern District of Wisconsin, Steve Biskupic. At that time, you said that Mr. Biskupic was, quote, "an absolutely straight guy," unquote.

When you were asked whether you knew that Mr. Biskupic was on a list for weak performers and potentially slated for dismissal, you said -- and I quote -- "No, and I think very highly of him."

Having had time to reflect on your testimony, do you have anything to add to what you said at that time? Do you know why he was put on a list of weak performers, and why he came off the list?

Did it have anything to do with the prosecution of voter fraud cases that he was taken off the list, or the prosecution of Georgia Thompson, an employee of the Democratic governor's administration at that time?

COMEY: I don't know from firsthand knowledge that he was on a list. I can't imagine why he would be put on a list (inaudible).

I think very highly of him, as you quoted. I think he is what you want in a U.S. attorney. And I'm not saying that because he's tall and skinny...

(LAUGHTER)

... but he is a very solid person, who is as honest as the day is long, cares passionately about the independence of the Department of Justice. I know this from talking to him.

So I can't imagine -- I know he's gotten beat on because a case he prosecuted was reversed in the 7th Circuit Court of Appeals. I tried to explain to somebody who asked me about that -- not in a hearing, but a private citizen.

I said, "It happens. And it's not an indictment of the good faith of the prosecutor, of the district judge who denied a motion for a directed verdict or the jury that convicted. Sometimes appeals courts disagree about the inferences to be drawn from the evidence and reverse a conviction. That doesn't tell you that the prosecutor is a bad guy. In fact, I know this one, and this is a good guy."

KOHL: Mr. Comey, yesterday's Washington Post reported that White House and Republican Party concerns regarding voter fraud prosecutions were the cause of many of the U.S. attorney dismissals. Can you confirm this?

During the time you served as deputy attorney general were you aware of concerns from the White House that U.S. attorneys were not active enough in prosecuting voter fraud cases? Did the White House exert any effort to encourage the Justice Department to remove U.S. attorneys whom it believed were not prosecuting voter fraud cases vigorously enough?

COMEY: I'm not aware of any issue that came to my attention regarding voter fraud when I was deputy attorney general, complaints or otherwise.

KOHL: While you served at the Justice Department, were you aware of any pressure from the White House to bring voter fraud cases?

COMEY: No, sir.

KOHL: Thank you so much.

COMEY: Thank you, Senator.

KOHL: Mr. Chairman, thank you.

SCHUMER: Senator Feingold?

FEINGOLD: Mr. Chairman, first, I want to praise you for your questioning. It was very long. I hope you don't make it a habit.

But I'll tell you something: I think it was some of the most important and valuable questioning that I've heard from a senator in the years that I've been here. And I just want to thank you for your leadership on this.

Mr. Comey, I want to commend you for your service, for your courage, for your testimony, some of the most dramatic testimony that I've heard in 25 years that I've been a legislator. Your courage at the time and today in defense of the rule of law is truly admirable.

Let me add, your account of Attorney General Ashcroft is the same.

FEINGOLD: This has been my experience with Mr. Ashcroft, despite our fundamental differences.

And I have great disagreement with this administration. But there's a difference in this administration between people like you and Attorney General Ashcroft, who do fundamentally respect the rule of law, and many others who have shown some of the most blatant disrespect for the rule of law I think in American history.

So I think it's only fair that we make these distinctions. And I know that's not your purpose in being here. But I simply want it noted in the record that here's somebody that literally stood tall for the rule of law. And I praise you for it.

I want to highlight one point you alluded to in answer to a question from Senator Specter.

This reauthorization process and the need for certification from the attorney general was only an internal control, not a statutory requirement. I think that that testimony makes it all the more clear that this committee must pursue this issue, and must be supplied with the relevant documents.

So, Mr. Comey, are you aware of any documents produced by the White House Counsel's Office with regard to this program?

COMEY: Not specifically. Yes, not specifically. I don't remember...

FEINGOLD: You don't recall reviewing any...

COMEY: I don't remember reviewing any from the White House Counsel's Office that related to this. I mean, it's possible. But I don't remember it.

FEINGOLD: What about documents from the Office of the Vice President? Do you know if any such documents exist regarding this program?

COMEY: I don't, no.

FEINGOLD: Did Mr. Gonzales or Mr. Card indicate -- ever indicate that they were acting on the direction or the knowledge of the president when they came to see the attorney general in the hospital?

COMEY: Not that I recall. I don't think so.

FEINGOLD: They never stated that, to your recollection.

COMEY: I don't think so.

FEINGOLD: Did something in particular occur that led to this issue coming to a head in March of 2004? Why not at an earlier point, in connection to one of the earlier reauthorizations?

COMEY: It was simply the pace at which the work went on in the Office of Legal Counsel.

We had a new assistant attorney general as of, I think, October of 2003. And there were a number of issues that he was looking at. And this reevaluation, this particular program was among those issues. And the work got done in the beginning part of 2004. And that's what brought it to a head with this particular...

FEINGOLD: So it was at this point that the office was able to get around to these concerns, these legal concerns and these internal concerns?

COMEY: I think that's right.

Concerns had reached the ears of the new assistant attorney general. And he undertook an examination -- with my approval and Attorney General Ashcroft's approval -- of this matter.

FEINGOLD: You made quite a moving farewell address to your colleagues in the department in August of 2005. In it, you thanked some of your colleagues for being, quote, "people committed to getting it right and to doing the right thing, whatever the price," unquote, and stated that some of those people, quote, "did pay a price for their commitment to right," unquote.

What were you referring to?

COMEY: I had in mind one particular senior staffer of mine who had been in the hospital room with me and had been blocked from promotion, I believed, as a result of this particular matter.

FEINGOLD: And so you were, in fact, referring to this incident in the hospital and somebody who was there and consequences that accrued to this person as a result of that?

COMEY: Yes.

FEINGOLD: Is that Mr. Goldsmith?

COMEY: No, it's Mr. Philbin.

FEINGOLD: Thank you, Mr. Chairman.

SCHUMER: Senator Specter wants to make a concluding statement or...

SPECTER: Well, I just wanted to confirm with you, Mr. Chairman, that we're not going to have a second round.

SCHUMER: We're not going to have -- I have one question, which I've showed you, and that's it.

SPECTER: There's a vote scheduled in five minutes, so I'm going to go to the floor at this point.

And I conclude by thanking you for your service, Mr. Comey. And I thank you for standing up. That's in the finest tradition of the Department of Justice and I hope we can reinstate it. Thank you.

COMEY: Thank you, Senator.

SCHUMER: Well said.

Senator Whitehouse?

WHITEHOUSE: Thank the chairman.

Mr. Comey, good morning. It's still morning.

I'd like to ask you -- you are obviously a person who cares very deeply about the Department of Justice and its institutions. And I worry about some of the institutional legacy of what we've been through.

In particular, I'd like to ask you for your thoughts on where the standards should be of what is proper versus what is improper in the context of bringing political influence or partisan influence into the Department of Justice. And while you -- that's, sort of, the framing part of the question.

More specifically, I've been very concerned at some of the statements that have come out of the Department of Justice that have been the department's efforts to define that level of impropriety.

And I'll tell you, it began first with Kyle Sampson who told this committee that, "The limited category of improper reasons for these dismissals would include an effort to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage."

And then, not too much later, Attorney General Gonzales came before us, and in nearly verbatim words, he said that, "It would be improper to ask for a resignation of any individual in order to interfere with or influence a particular prosecution for partisan political gain."

And in the wake of the attorney general's testimony in the House, the Justice Department issued a statement saying that, "It is clear that the attorney general" -- again, defining the standard of what's improper -- "did not ask for the resignation of any individual in order to interfere with or influence a particular prosecution for partisan political gain."

WHITEHOUSE: Now, when I read those things I hearken back to the elements of obstruction of justice, which I recall as being three. One is the awareness of a particular case. Two is the effort to influence or interfere with it. And three is that that be done for a corrupt or improper motive, such as partisan political gain.

Let me ask it to you two ways.

The first way would be, if it became clear to you that somebody in the department had tried to interfere with or influence a particular prosecution for partisan political gain, would you consider that to be the basis for opening -- at least opening an obstruction of justice investigation?

And if the facts were proven, would that not even be the basis for a conviction for criminal obstruction of justice?

COMEY: I think it potentially could be, yes -- certainly for looking at the matter.

WHITEHOUSE: Yes.

And in that context, do you think that is where the bar should be set for what is improper versus not improper in terms of political influence coming into the Department of Justice? Is that the right standard?

COMEY: No. If the standard is whether we're running afoul of the obstruction of justice statute, I think it's set way too low.

Senator, as you know...

WHITEHOUSE: What should be? You've had the chance to think about this. You care about this department deeply. You've shown through what is probably a difficult experience for you that you're willing to think about these things without bias and really try to get to the right answer.

How would you phrase where the standard for what is improper should be in terms of where and when the department should allow political influence to enter into its deliberations or its conduct?

COMEY: I think that you have to talk about it in two pieces. One is main Justice and the other is the U.S. attorneys.

And although both of those parts of the institution are led by political appointees, I think they are -- have to be different in terms of what political means.

I think it is the job of the Department of Justice to be responsive to the policy priorities of the president, who's elected and who has appointed the folks to run the department.

COMEY: But I think it is main Justice's job to see to it that U.S. attorneys can operate in an environment where there is a little or no politics -- big P or little p -- at all entering into their considerations.

I think once they walk through the door and become the U.S. attorney, although they're politically appointed, they've got to call, as someone said, balls and strikes without regard to whether the person in the dock is a Democrat or a Republican or a Green or a who cares? They have to make the judgment the judgment on the facts.

I think the job of the department is, to the extent that there are complaints or their political issues, to receive those and figure out what to do about them without polluting the work of the U.S. attorney. And that's why I think they're different.

I think the hard thing to define in the abstract is certainly not obstruction of justice as the standard. I think the department needs to make its decisions about what to do with political interests or information by looking at what is the mission of the Department of Justice.

WHITEHOUSE: And do you agree with me that this standard that they've been articulating about efforts to interfere with or influence a particular prosecution for partisan political gain effectively restate the standard for a criminal obstruction of justice?

COMEY: It sounds like it does. And that's certainly something that should be avoided at all costs.

But I think it sets the bar a little too low in terms of what the department's mission is in protecting the historical autonomy of the entire department, especially the U.S. attorneys.

WHITEHOUSE: Mr. Chairman, my time has expired.

Thank you, Mr. Comey.

SCHUMER: Thank you, Senator Whitehouse.

Mr. Comey, I just want to follow up on one final question. I showed it to Senator Specter ahead of time because he had to leave.

But he was asking about legality/illegality, within law/not (ph). The key point here is isn't it the Office of Legal Counsel that makes a determination about whether something is within the law or not within the Justice Department?

COMEY: Yes. And its opinions are binding throughout the executive branch.

SCHUMER: And didn't that office make a decision and advise you that what was attempting to be done was not within the law?

COMEY: The conclusion was that they could not find an adequate legal basis for...

SCHUMER: OK. Let's put it that way.

COMEY: Yes.

SCHUMER: So they could not find an adequate legal basis for doing it that way?

COMEY: Correct.

SCHUMER: And you felt that if they couldn't, you couldn't preside over the Department of Justice if you were going to be overruled by the White House to do it anyway.

COMEY: Yes.

SCHUMER: I think that's OK.

Let me conclude, then, by just thanking you. You are a profile in courage. You are what our government is all about. In this case, it has nothing to do with Democrat, Republican, liberal, conservative. It has to do with doing a job well and caring about the rule of law.

And I would say what happened in that hospital room crystallized Mr. Gonzales' view about the rule of law: that he holds it in minimum low regard.

And it's hard for me to understand -- I'm going to say something that you won't say: It's hard to understand after hearing this story how Attorney General Gonzales could remain as attorney general, how any president, Democrat, Republican, liberal, conservative, could allow him to continue.

But I want to thank you for being here. I know it wasn't easy. I know that if we didn't have the power of subpoena you wouldn't be here. I know you have a conscience that obviously you've wrestled with in all this and it's very difficult to be here.

But a profile in courage, by definition, is difficult. And I think I speak on behalf of almost every American: We thank you for being here and having the courage to speak the truth.

(APPLAUSE)

END