The March 10, 2004 Hospital Confrontation, A Timeline

I’ve had this timeline mostly done sitting in my drafts. Given Murray Waas’ two latest articles, I thought I’d put it out.

One reason I’m posting this today: if Gonzales’ claim that he probably wrote his notes during the weekend immediately after the Hospital confrontation is correct, it suggests he didn’t take his notes until after Bush learned Comey and Mueller might resign. Also, he wrote his notes of the Gang of Eight meeting after Mueller had already first saved his notes on the confrontation.

This timeline is a combination of this timeline of Robert Mueller’s notes (which is, IMVHO, one of my better timelines, so click through and read it for more analysis), this timeline of the OLC opinions pertaining to the program from the time period, details from Comey’s testimony before SJC, as well as other known events. I will add details from Barton Gellman’s book in the next week.

October 3, 2003: Jack Goldsmith confirmed as head of OLC.

Mid-November 2003: Goldsmith writes draft memo for Ashcroft: Review of Legality of the [NSA] Program

December 11, 2003: Comey confirmed Deputy AG.

Monday, March 1, 2004: Mueller meets with Comey in his office.

Thursday, March 3 or 4: Comey and Ashcroft decide not to reauthorize the warrantless wiretap program.

Thursday, March 4: Ashcroft hospitalized with pancreatitis. Comey becomes Acting AG.

Tuesday, March 9

10:00AM: Mueller meets with top FBI officials–several with counter-terrorism focus, Fedarcyk, Pistole, Caproni (and perhaps Wainstein and Gebhardt).

12:00PM: Meeting at Card’s office, VP, CIA Deputy Director John McLaughlin, NSA Director Michael Hayden, Robert Mueller, Alberto Gonzales and others present. (Note, Mueller does not record that Comey was at this meeting.)

4:00PM: Meeting at Card’s office with Mueller, Comey, attorneys from OLC, VP, Card, Gonzales, Hayden and others. (Note, this meeting is basically an extension of the earlier meeting, this time with the lawyers from DOJ present.)

Time unknown: Comey refuses to reauthorize the program.

Wednesday, March 10

Time unknown: Briefing for the Gang of Eight (Denny Hastert, Bill Frist, Porter Goss, Pat Roberts, Nancy Pelosi, Tom Daschle, Jane Harman, and Jello Jay). According to Gonzales, at the briefing "the lawmakers rejected emergency legislation but recommended that the program should continue despite the Justice Department’s opposition." Jello Jay disputes Gonzales’ account; it is unclear how he and Jane Harman responded.. Nancy Pelosi opposed the continuation of the program.

7:15PM? (Comey says around 8:00, but before the call to Mueller at 7:20): Ashcroft Chief of Staff David Ayres calls Comey as he is on his way home. He says Mrs. Ashcroft has received a call–possibly from the President–and "as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft."

7:18PM?: Comey directs his driver to take him to George Washington Hospital. Comey calls his Chief of Staff to tell him to "get as many of my people as possible to the hospital immediately."

7:20PM: Comey calls Mueller at he is at a restaurant with wife and daughter. Comey is at AG’s hospital with Goldsmith and Philbin. Tells Mueller that Card and Gonzales are on the way to hospital to see the AG but that AG is in no condition to see them, much less make decision to authorize continuation of the program. Asks Mueller to come to AG’s hospital to witness condition of AG. [Note, Mueller says Comey calls from hospital, Comey says he calls from his vehicle.]

7:25PM?: Comey reaches hospital. Tries to orient Ashcroft.

7:30PM?: Goldsmith and Patrick Philbin arrive at hosiptal.

7:35PM?: Gonzales and Card arrive at hospital. Gonzales explains they are there to get Ashcroft’s approval on the warrantless wiretap program; he has an envelope with the authorization in it. Ashcroft raises himself off his pillow and explains the problems with the program. Then, Ashcroft reinforces that Comey, not Ashcroft, was the Attorney General at that moment. Ashcroft also complains that the White House-ordered compartmentalization had prevented Ashcroft from consulting with experts on the legality of the program.

7:40PM?: Mueller and Comey speak. Comey asks Mueller to meet with Ashcroft to serve witness to his condition. Comey also asks him to inform the FBI detail that no one is to be permitted to see Ashcroft, other than family, without Mueller’s consent. Mueller passes on these instructions to the security detail. [Comey says this second conversation took place by phone before Card and Gonzales arrived, with a third conversation in person after they left, Mueller says the order to the FBI detail took place in person after Card and Gonzales came and left.]

8:10PM?: Mueller describes his visit with Ashcroft: Saw AG. Janet Ashcroft in the room. AG in chair, is feeble, barely articulate, clearly stressed.

8:20PM?: Mueller departs the hospital. Comey gets an "urgent" call in the command center from Card. Card orders Comey to come to the White House immediately. Comey says he will not meet with him without a witness present. Card plays dumb, "What conduct? We were just there to wish him well." Comey responds, "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."… "Until I can connect with Mr. Olson, I’m not going to meet with you." Card asked if Comey was refusing to come to the White House, to which Comey responded, "No, sir, I’m not. I’ll be there. I need to go back to the Department of Justice first." Comey calls Ted Olson at a dinner party and Olson and the other top leaders of the department meet at DOJ.

8:30PM?: Comey returns to DOJ to meet with Olson and other top leaders of DOJ (including Associate Attorney General Robert McCallum, Goldsmith, Philbin, and other staffers).

11:00PM: Comey and Olson go to DOJ together.

11:20PM?: Comey and Card have a more civil discussion. There is some discussion about DOJ resignations.

11:30PM?: Gonzales and Olson join Comey and Card.

Thursday, March 11

1:37-1:40AM (7:37-7:40AM Madrid time): Almost simultaneously, bombs go off on four different trains in Madrid.

Time unknown: Goldsmith sends Gonzales a one-page letter "seeking clarification regarding advice that OLC had been requested to provide concerning classified foreign intelligence activities."

Time unknown: Tom DeLay briefed on warrantless wiretap program. 

Time unknown: Gonzales signs reauthorization of warrantless wiretap program in lieu of Comey signing it.

12:00PM: Mueller meets with Card in Card’s office at his request. [6 paragraphs are redacted]

12:40PM: Mueller stops by Gonzales’ office after meeting with Card.

1:15PM: Mueller meets with Comey, et al., at Comey’s office.

Time unknown: Comey prepares a letter of resignation dated March 12, the following day. David Ayres asks Comey to hold off on resigning until John Ashcroft was well enough to resign at the same time. Comey agrees to hold off resigning until Monday morning, with the understanding that Friday March 12 would be his last day.

2:50PM: Gonzales calls Mueller.

Friday, March 12

9:00AM?: Comey and Mueller brief Bush and Cheney on counter-terrorism efforts.

9:30AM: Bush speaks with Comey, alone, in his office.

9:45AM: Bush calls Mueller into the side office off the Oval Office after the conclusion of the morning briefing of him. [7 paragraphs redacted] Bush tells Mueller to do what DOJ thinks is needed to put the program on a legal footing.

10:45AM: Mueller meets with Comey and others at DOJ.

Time unknown: Goldsmith sends a one-page memorandum to Comey providing legal advice concerning certain decisions relating to classified foreign intelligence activities.

4:06PM: Mueller first saves his notes about the confrontation in a file titled, "H:RSM_DocsMiscellaneousProgram.wpd March 12, 2004 (4:06PM)."

4:50PM: Mueller calls Gonzales.

5:00PM: Mueller meets with Comey and others.

6:45PM: Mueller calls Gonzales.

Saturday March 13

Time unknown: "Probably on the weekend immediately following" the March 10 showdown, on Bush’s direction, Alberto Gonzales records responses from Gang of Eight members to briefing on warrantless wiretap program.

9:55AM: Mueller calls General Hayden.

Sunday March 14

Time unknown: OLC provides a briefing titled "Presentation: Where DOJ is on [REDACTED CLASSIFIED CODENAME]." It consists of a two-page presentation, and (presumably) five-page handouts of bullet points related to the presentation. These materials "were prepared for purposes of providing legal assistance and advice to other Executive Branch officials concerning DOJ’s views about foreign intelligence activities."3:00PM: Mueller meets at DOJ with Comey, et al.

Time unknown:"Within the next day," Gonzales adds a single line to his notes on the Gang of Eight briefing.

6:20PM: Mueller calls Comey.

6:45PM: Mueller calls Gonzales.

Monday March 15

8:50AM: Mueller discusses issues with Tenet after morning briefing in Sit Room.

9:30AM: Mueller calls Comey.

Time unknown: Goldsmith prepares a three-page memorandum (of which there are four copies) for Comey. The memo includes an electronic file. The memo "outlines preliminary OLC views with respect to certain legal issues concerning classified foreign intelligence activities. The memorandum specifically notes that OLC’s views have ‘not yet reached final conclusions’ and that OLC is ‘not yet prepared to issue a final opinion.’"

Tuesday March 16

Time unknown: OLC 63 [the same as FBI 4] is a two-page memorandum (and related electronic file) dated March 16, 2004, from the Acting Attorney General to the Counsel to the President, copied to the President’s Chief of Staff, containing legal recommendations regarding classified foreign intelligence activities.

1:45 PM: Gonzales calls Mueller.

6:40 PM: Comey calls Mueller.

8:00 PM: Gonzales calls Mueller at home.

8:30PM: Comey calls Mueller.

Wednesday March 17, 11:05AM: Comey calls Mueller.

March 22, 2004. from Goldsmith to Comey: OLC 114 consists of two copies of a three-page memorandum dated March 22, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which confirms oral advice provided by OLC on a particular matter concerning classified foreign intelligence activities.

Tuesday, March 24, 1200: Mueller meets with Cheney, at his request, in his Office. (Note, at almost precisely the same time, Scooter Libby was perjuring himself before the Grand Jury.)

March 30, 2004, briefing from Comey to Ashcroft: OLC 65 is a five-page document (plus an electronic file), dated March 30, 2004, entitled "Briefing for AG." This outline for a briefing to be provided to the Attorney General by the Deputy Attorney General prepared by Department staff includes a summary of preliminary OLC conclusions concerning the TSP and other intelligence activities; a discussion of issues for decision concerning these intelligence activities; a description of advice provided by OLC to other Executive Branch agencies and components concerning these activities; and an identification of legal issues requiring further discussion.

May 6, 2004: Jack Goldsmith drafts OLC 54, a memo for John Ashcroft, which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities.

June 17, 2004: Jack Goldsmith announces his resignation.

    • bmaz says:

      You folks pound away here for a bit and I will have a more substantive post up shortly. I am in severe need of Ishmael’s liveblogging fingers, mine seem to not function in a fast nor coordinated fashion….

  1. DeadLast says:

    The reason for the financial meltdown is that BushCo can’t keep the lies hidden anymore. The shitstorm has begun. First Gonzales, then former Treasury Sec. O’Niell, then Rice. This will be very ugly. And the Bush cronys on wall street are probably all headed for dubai or paraguay. Let them eat currency!

    • JThomason says:

      Is this really true? I am seeing it as another ploy to bilk the treasury. Certain facts are known with regard to public institutional failures but the mechanisms of the leverage, the code underlying the default credit swaps, and the basis in actual liability for a 700 billion dollar figure are unknown existing in the opacity of the private operations of the financial industry and its appurtenant cabals.

      The Republicans are divided, perhaps intentionally, because they know they hamstring government by playing the ends against the middle. On one end increased deregulation and an acquiescence to the so-called market forces on the other hand encumbering government with the tax payer rescue of private financial failure, propping up the gamblers, and depleting resources that may be deployed more constructively toward traditional public purposes.

      The entire financial debacle, like the wire tapping excesses, is an assertion that elite money and executive power is not constrained by the limitations of government.

  2. drational says:

    Can you add in the one on one meeting with Tom Delay on March 11 to brief on the NSA program?
    I think it reflects priorities as they run around in crisis…

    • emptywheel says:

      Done. I agree–it’s an important meeting.

      There are reasons I doubt the story Murray’s getting of Gonzales’ notes–I’ll try to do a post to explain it on the plane.

      But I do find it relevant that, after Congress said they couldn’t do legislation, they still briefed DeLay. And it was only AFTER Comey and Mueller threatened to resign that Gonzales started his notes.

  3. Minnesotachuck says:

    Hate to go OT so soon but RoadsToIraq, a source cited frequently by the likes of Juan Cole, The Badger and the Aardvark, reports that one of the conditions Bush-Cheney are trying to stuff into the SOFA is the right to base nuclear-tipped missles in Iraq. I sure hope her sources are misinformed. Cold War Redux.

  4. posaune says:

    I love it, ew, . . . . . “while scooter was perjuring himself at the grand jury.”
    you got me to smile today, thanx.

    oh, and we have a new phrase in our house now …. mr posaune trying to figure something out, solve a complexity, now i just say, “no, I can’t help you — go ask emptywheel”

    • WilliamOckham says:

      Surgeons always schedule surgeries like that for early in the morning. With somebody important like Ashcroft it would have been the first surgery of the day, probably starting by 6am at the latest.

  5. Citizen92 says:

    When Bush sent Card and Gonzales to Ascroft’s bedside, are we sure that Bush knew Comey was in his ‘acting’ AG role?

    I ask only because Bush is so famously uninformed. He could have mistakenly said “go see Ashcroft” and C&G could have taken it literally, without question, turned on their heels and headed to the hospital. Yes, sir.

    I doubt it, really, but have to ask.

    Also, any idea what happened to Gonzales’ notes? Were they destroyed? Confiscated?

  6. Leen says:

    “Were the president’s actions designed to protect his attorney general—or himself?”

    Who do psychopaths protect?

  7. scribe says:

    You left out: March 10, time unknown: “FBI guard at Ashcroft’s hospital room receives telephone call from White House, logs call from President Bush himself, and puts call through to AG Ashcroft, breaking Mrs. Ashcroft’s injunction because no one had the nerve to say no to the President himself.”

  8. WilliamOckham says:

    OT: Scott Horton says:

    The joint Inspector General/Office of Professional Responsibility report looking into the December 6, 2006 decision to fire a group of U.S. Attorneys is set to be released on Monday morning, according to sources inside and close to the Justice Department.

  9. Mary says:

    20 – TPM has a piece up referencing Iglesias on that as well. I’m at the point where anything that comes from this now&future DOJ is just a bunch of words on paper. I’ve come to the sad conclusion that there’s not enough respect for anything but their combined criminal endeavors at DOJ, for the IG or any of the components at DOJ to generate anything worthwhile. It’s like wearing a Mr. Bubble t-shirt instead of actually taking a bath.

  10. Mary says:

    Random comments not likely to further anything:

    1. I wonder how things went from this program so closely held that supposedly Townsend knew nothing about it and supposedly Goldsmith didn’t even get an ok to discuss the program with Comey OR Ashcroft at first, to one where Mueller and Ayres and Philbin and Olson and McCallum etc. were all in the loop. It would be nice if more info on the ok for the review and those in the loop was available. It seems Baker had to have been in the loop too bc of his interactions with the FISCt judges.

    2. Another interesting date to have would be the dates of the contact from Kollar-Kotelly to Ashcroft drawing lines in the sand over the DOJ breaches of FISct firewalls.

    3. One of the things that has popped up in the last few days, but was buried by a lot, is that for some reason Rice decided to respond to questions from Senate Armed Services investigators.

    Obviously, the only reason she would bother is to promote some kind of a self-serving or Bush-serving agenda, since, as the story reveals:

    The committee submitted similar questionnaires to other Bush administration officials. But Levin said that they declined or refused to respond.

    and nothing is going to happen to any of them for staying hush. So on a first blush, it seems the only reason Rice responded is that she wanted to counter the Ashcroft theme that he was just an unaware, unadvised, innocent guy who knew nuthin bout no torture, with all the torture cooked up solely by Addington and Yoo and sans participation of the AG

    Rice did not disclose who at the meetings, but said that she had “asked Atty. Gen. [John] Ashcroft personally to review and confirm the legal advice” being prepared by the Department of Justice on the CIA’s interrogation plans.

    That seems to be the whole thrust of why she answered, to say that yes, the “not-torture depravity” was tea and scones conversation at the meetings and that Ashcroft directly ok’d it all. I’m guessing no one bothered to get specifics on el-Masri and Arar from her. Or a young detainee frozen to death. Or even missing children – or for that matter, what State is doing now about the 11 yo US child disappeared by the Afghan govt. Dem investigations have all the interest and suspense of watching One Question [no]Jeopardy.

    4. Interesting that when Ashcroft was in the hospital, for once his David wasn’t tied up in an Abramoff skybox or chit-chatting with Kevin Ring.

    5. I’d also still like to have someone find out if McNulty ever took back the delegation on the Plame investigation after Comey left.

    6. Meanwhile at GITMO, it’s still only JAG officers who seem to be interested in the law, non-destruction of evidence, rules of conduct, ethics, and even just your basic morality and evidence. Showing just how stupid I am, bc 7 1/2 years ago, I would never have guessed that all of the thousands of civilian lawyers at DOJ would be worse than useless, while guys in a direct chain of command and subject to military strictures and all kinds of unprotected retaliation would have been the ones to dig in. I have to admit that it’s just almost too hard to not be able to have any heroes, so thank God for them.

    7. Yes, I did have a Mr. Bubbles t-shirt myself, once upon a time. Wish I could find it.

    • WilliamOckham says:

      Regarding Rice, she’s trying to protect State and blame it all on Justice and CIA. Typical D.C. blame game, but Levin may be able to get closer to the truth if he plays the wedge properly.

  11. Leen says:

    Are they going to throw Addington off the bus”

    “It has been widely reported that Bush executed the March 11 order with a blank space over the attorney general’s signature line. That is not correct [15]. For reasons both symbolic and practical, the vice president’s lawyer could not tolerate an empty spot where a mutinous subordinate should have signed. Addington typed a substitute signature line: “Alberto R. Gonzales.”

    What Addington wrote for Bush that day was more transcendent than that. He drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief.”

  12. MadDog says:

    Sunday March 14

    Time unknown: OLC provides a briefing titled “Presentation: Where DOJ is on [REDACTED CLASSIFIED CODENAME].” It consists of a two-page presentation, and (presumably) five-page handouts of bullet points related to the presentation. These materials “were prepared for purposes of providing legal assistance and advice to other Executive Branch officials concerning DOJ’s views about foreign intelligence activities.”3:00PM: Mueller meets at DOJ with Comey, et al.

    EW, shouldn’t this be:

    Sunday March 14

    Time unknown: OLC provides a briefing titled “Presentation: Where DOJ is on [REDACTED CLASSIFIED CODENAME].” It consists of a two-page presentation, and (presumably) five-page handouts of bullet points related to the presentation. These materials “were prepared for purposes of providing legal assistance and advice to other Executive Branch officials concerning DOJ’s views about foreign intelligence activities.”

    3:00PM: Mueller meets at DOJ with Comey, et al.

  13. Mary says:

    25 – She’s talking about when she was on NSC as the NSA though. While Powell was at State, with Taft who might possibly deserve the unwarranted reputation Bellinger has tried to claim as fighting torture.

    So I don’t see how she’s protecting state with those statements and I don’t see why she’s even offering them up (since none of the other Principals are – except maybe Ashcroft behind closed doors) unless it is to make sure Ashcroft is nailed as specifically reviewing and authorizing everything that was done and to cut off at the knees the claims that he didn’t really know what Addington and Yoo were up to. Maybe it involves protecting state, but I don’t see that and it does seem very personally motivated towards Ashcroft.