1. gracchusrex says:

    Thanks for the additional angle on this, emptywheel. My first thought when reading Kmiec this morning was along the lines of Lederman. I was confused by Kmiec’s supposed authority on the Constitution and presidential powers, yet something in his argument didn’t seem right to me. If the President didn’t need the signature, why did he send his heavies to Ashcroft’s hospital bedside like some mob enforcers? Well, as it turns out, the President didn’t need the signature; he went forward with the program anyway.

    And Kmiec’s statement that â€Comey’s tale lacks…[the] venal political intrigue [of Nixon’s crime] is absurd and laughable; another instance of the sort of wilful aversion to the facts that neocons assert when they can’t face reality. This administration is all about Nixon, all over again. It’s a difference of only a few degrees, and those mostly can be attributed to Nixon’s superior intellect and cunning. But both are best understood as ruthlessly venal operators who would do anything to hold onto power.

  2. Albert Fall says:

    When Katrina hit, all the fretting that Bush really was a dope crystallized into the recognition that yes, he really was as bad as we feared. The public already knew intellectually Bush was dim, and after Katrina people connected to that knowledge emotionally.

    Likewise, people knew Bush is a sadist, but Comey’s testimony brought it home. We all saw the Godfather, we know what someone looks like running upstairs to rescue an endangered invalid from approaching thugs…….the tension, the worry, the soundtrack, the narrow escape….

    Gonzo, just a crooked cop. Bush, just a Fiend in Human Shape.

    This story may provide the Beltway crowd with emotional connection to the arguments against Bush’s integrity.

    On the merits, stating that top Justice leadership was prepared to resign over the matter is evidence of how wrong it was.

    I am hearing a lot of the same lines repeated by the GOP noise machine across mulitple scandals, like Plame, the USAs, and now the wireless wiretap reauthorization:

    â€There was no crime.â€

    â€There is no evidence.â€

    Obstruction of justice IS a crime. Obstruction occurs when the GOP hides or destroys the evidence, or lies about the facts.

  3. windje says:

    I have seen no discussion of the statutory basis or commentary on the question of why the DOJ approval required to be renewed every 45 days.

    Is the answer to this obvious to everyone but me? HELP!!!

  4. Quzi says:

    Thanks EW for Marty Lederman’s take…it makes a lot more sense on the importance of the signatures in regards to the AG and Telecom companies.

    However, a gut feeling that still knaws at me is that there is more to this story that we are not privy to yet. And I haven’t a clue what it is. Comey has been agonizing over this for three years. I just feel there is more evil and more criminal intent on BushCo’s part that we don’t even know about (in addition to systematic violations of FISA). I may be wrong, but it just feels that way to me.

  5. voodoo says:

    check out this link:

    The Wiretap Report revealed that a total of 1,839 intercepts authorized by federal and state courts were completed in 2006, an increase of four percent compared to the number terminated in 2005. The number of applications for orders by federal authorities reported fell by 26 percent to 461. DoJ explains the reported drop as under-reporting, because the data does not reflect â€a large number of complex and/or sensitive investigations that continued into 2007 and thus could not be reported to the Department of Justice by the deadline, as well as some federal investigations that were under court seal.

    uh huh.

  6. Frank Probst says:

    I loved his description of Comey’s testimony as â€histrionicâ€. It was a nice (but ultimately futile) effort to belittle Comey’s testimony. In fact, Comey’s testimony was not â€histrionic†at all. It was the behavior of Gonzales and Card that was â€histrionicâ€. It was also â€jaw-droppingly outrageousâ€, â€thuggishâ€, and â€way the fuck over the lineâ€.

  7. Rayne says:

    voodoo 11:01 — uh huh ditto.

    Jeepers, want to bet that increased number of complex and/or sensitive investigations in 2006 were for voter fraud or into Democratic candidates and incumbents?

  8. pol says:

    This description of Kmiec says it all:

    The writer, a professor of constitutional law at Pepperdine University, was assistant attorney general and head of the Office of Legal Counsel to Presidents Ronald Reagan and George H.W. Bush.

    Quzi, @10:25, I agree. The scary part is that some people really believe that this bunch is acting ethically when they say they need extra-Constitutional authority in order â€to protect us.†That can’t be the case. Look at what we’ve uncovered so far.

  9. Mimikatz says:

    Lederman’s analysis that the certification was needed for third parties such as the telcos who were actually doing the intercepts makes real sense.

    On Kmiec, why oh why is it so hard for these supposedly intelligent people to see what Bush/Cheney are really up to and stop defending the indefensible? This is beyond Reagan, beyond GHW Bush, in many respects beyond Nixon as well because Nixon still had the residual respect for authority and institutions of his generation when he and his minions were starting to get caught. By abdicating their intellectual integrity to follow Bush/Cheney off a cliff, these people have not only sold their souls but become irrelevant. Protecting corporate power is all they have left as a raison d’etre. Really, really pathetic.

  10. Polibus says:

    WHICH PROGRAM? Who’s program?

    Reocurring theme? Weak Article II argument for a shockingly absurd Executive power grab.

    Which 2 guys do we know love some Article II and are down for more executive power even if it means inventing new authority and exercising it regardless of constitutional protections?

    Could Cheney/Rumsfeld have gone outside NSA & FISA to create it’s own domestic spy agency to report to them directly….considering they created their own intell agency in the Pentagon to rebut the CIA & State on WMD etc?

  11. bmaz says:

    Don’t be so quick as to downplay the significance of the signature. Remember, the formal opinion of the OLC is binding on the Executive. It was, and is, a big deal; without that sign-off, the program was flat out illegal. When Bush proceeded in the interim (2-3 weeks I think it was) until Comey et.al. â€fixed†it minimally enough to get their approval, he committed a serious Federal felony crime for each and every illegal intercept that occurred during that period.

    As to the telecom etc. companies being part of the puzzle, they undoubtedly were, but not that big a piece. The bigger problem is the one above. As to the 45 day re-upping deal, my guess is that is some type of requirement imposed by Judge Colleen Kollar-Kelly of the FISA Court, because she had real problems with what was going on.

  12. earlofhuntingdon says:

    Marty Lederman’s analysis is also great. Kmiec’s article assumes we know which program(s) this debacle is about. I doubt we do.

    The President could easily have made a determination that he didn’t need OLC/DOJ approvals, but then he would have been on the hook rather than his chief legal officer. And kudos to those pointing out that that would not have been sufficient for the NSA or cooperative telecomms companies like AT&T, who are allowing domestic intelligence agencies to tap into a Gulf Stream of data flows.

    I think the President and his men are addicted to massive bullying. At the time of Gonzo’s visit to Ashcroft’s hospital bed, this was all hush, hush, on the QT. It would have been front page if the director of the FBI and the top tier of the DOJ resigned en masse. The question, in protest of what?, would have needed an answer. Coming six months before the President’s re-election, this could well have led to Bush’s defeat. So, Shrub backs down, apparently, and modifies his program.

    The DOJ’s authorization for the â€modified†program(s) is dependent on the President having kept his promises. Has he?

  13. hauksdottir says:

    Mrs Ashcroft would know WHO called her to demand access for Gonzales and Card. The phone companies and the hospital should also have a record of that call. If Bush himself made it on his secure line, it would have been encrypted, but ought still have been logged as happening.

    Given how sick her husband was, I doubt if anybody besides Bush could countermand her protective stance. I also doubt if the sadistic bastard asked permission given how he has acted before when faced with a roadblock or the law.

    Could the SJC get a deposition or letter from her?

    If anybody else was trying to get access, different minions would have been sent. Card’s presence clearly implicates Bush rather than Cheney, Rumsfeld, Tenet, or a Cabinet member.

    Since Mrs Ashcroft called for Comey’s help, rather than a friend of the family or other personal protector, she knew the purpose of the invasion, and that it was not a simple get-well call. By quietly orienting Ashcroft, Comey gave him the reference point he needed to repudiate the invaders. With the support of the FBI guard, Gonzales and Card couldn’t try anything too heavy-handed. Bullies are cowards at heart.

    Meanwhile, how many high crimes and misdemeanors will it take to impeach the lot?

  14. Ishmael says:

    EW: Long time lurker, first time poster!

    I think what we have to realize here is that the key is to reach Bush, and we finally have a direct link. It’s important not to let Gonzales turn into the shiny object, diversion, Maguffin, firewall – he is the diversion, and a made man like Libby – he will stay loyal. Yesterday’s question of Bush regarding whether he ordered Card & Gonzales to go to the hospital was a small first step in maintaining this frame – I’d like to see it become A Few Good Men in the public’s eye:

    Tom Cruise(Iglesias!) Did you order the Code Red (in the hospital room)?
    Nicholson(Bush) – YOU’RE GODDAMN RIGHT I DID!!!

    This is how to battle the Kmiec meme about it being a disagreement among lawyers about dusty statutes, make Bush look like the lying bully he is. OT if he would order this, does anyone doubt he put the hit out on Valerie Plame?

  15. kvenlander says:

    Hauksdottir, I believe Mrs. Ashcroft called AG Ashcroft’s Chief of Staff, who in turn called Comey. But I think your point stands.

  16. Anonymous says:

    Ishmael

    Welcome!

    Bush did, in fact, start much of the attack on teh Wilsons. It’s a post I’ve been mulling since the trial. But I think I’ll do a bunch of Libby posts leading up to the sentencing hearing.

  17. TomJ says:

    hauksdottir @ 15:52:

    I think the fact that Mrs. Ashcroft alerted Comey is the critical fact which proves the intent. What happened exactly is important: if she didn’t know the exact reason for the visit, would she have called Comey on her own, and would Comey have known to rush over? Either Ashcroft informed his wife of the urgency of the situation, or she realized it herself. Either way the documented response of everyone involved will make it impossible to explain away the situation.

    One question: is it not a crime of any type to induce someone to sign a legal document under these conditions? In this case, the signature was to be used as an official document, and yet the person signing it would not have been officially able to do so. What is it called when you pass off a false document? It seems to me there are potentially a few crimes here.

  18. bmaz says:

    TomJ – Yes there are several potential issues there. And, notably, as a lawyer, for Gonzales to have tried to take advantage of an incapacitated person is extremely unethical.

    EW – TomJ here has raised a whopper of an issue. This is a HUGE ethical violation for Gonzales.

  19. Ishmael says:

    bmaz –

    Re Fredo’s ethical violation – clearly Comey recognized as much and said so in his testimony, and Card himself tried to pass off the hospital visit as just â€wishing (Ashcroft) well†– as Digby says, just like â€Enzo the Baker†visiting Don Corleone in the hospital. What I wonder in all this is the nature of the documents that Fredo and Card brought with them – if stock options can be backdated, surely an approval of the program signed by Ashcroft to the period before Comey became acting AG would not be beyond Bushco. If that is the case, it is not simply taking advantage of an incapacitated person in the course of your duties as White House Counsel, but a conspiracy to commit an illegal and fraudulent act – in reaching this conclusion, I am persuaded by Lederman’s theory that the re-authorization was necessary to show the NSA and telecom counsel who were relying on the â€certified†legality of the program.

  20. bmaz says:

    Ishmael- Agreed. I would throw in that mix that I think the re-authorization also was likely key with FISA Judge kollar-Kelly. If this was indeed what it looks to be, really has to be, there are so many violations it is hard to know where to start. TomJ’s comment reminded me of something I have been carping about for some time now as to Monica Goodling. The need for someone to file an ethical complaint with their home state bar (Virginia for Goodling, Texas for Gonzales) as well as the DC Bar. I have thought about doing it, but it would be a lot stronger from a resident of their respective states. Especially as to Gonzales, the ethical violations are extremely serious and, really, crystal clear. The â€Bush made me do it†bit isn’t going to work either.

  21. Veritas78 says:

    â€Histrionic†— that adjective crumbles just by watching Comey’s testimony, which was anything but.

    Pepperdine? Say, isn’t that the uber-Catholic law school that harbors Ken Starr? Isn’t it known as the â€Regent U. of the West?†Exams must be over if their professors have time to launch Rovian smear campaigns on such short notice.

  22. Ishmael says:

    Bmaz – interesting perspective to use the discipline process against AGAG. In my jurisdiction as a lawyer, a lawyer cannot refuse to answer questions put to the lawyer by a complaints investigation committee – a lawyer can be a compellable witness, subject to rights against criminal self-incrimination, and the Bar can move against someone even if the lawyer does not attorn to the proceeding or respond. Certainly complaints to the bar were part of the VRWC against Clinton. Whether it would be wise to do so is another issue – in my view, the key is to focus on Bush’s direct and unrefutable (even by Bush!) involvement in ordering the visit – this helps to shatter the Kmiec meme of this being merely a lawyer’s squabble.

  23. bmaz says:

    Ishmael – I agree with that concern. I get frustrated that nothing ever really moves though; and in the meantime our justice system takes another cumulative battering every day. When I used to represent large drug conspiracy clients, the government came at them from every angle possible, squeezing as hard as they could. Criminal charges, tax investigations, civil forfeiture actions, housing complaints, harrassment of spouses and family and, if there was a professional license, action against that. I recall it as being damn effective. I dunno; I think i am just getting punchy. This crap is tiring after a while.

  24. K says:

    I notice that Chas Krauthammer repeated Kmiec’s argument verbatim on the May 18th edition of WJLA’s â€Inside Washington.†Look for others to do the same.

  25. Anonymous says:

    A top secret program discussed in an unswept, unsecure hospital with air vents all around.

    Gonzales and Card broke security protocol and illegally disclosed classified material in a public setting if not anything else.

  26. voodoo says:

    From NYT: To ensure his security, the attorney general(Ashcroft) was being housed in a block of four rooms in the intensive care unit, hospital officials said.

    maybe not unswept, but not secure enough to be discussing a program so secret/classified that the president dismisses any mention of it with a ’no comment on it’.