Douglas W. Kmiec (former assistant AG and former head of the Office of Legal Counsel to Presidents Ronald Reagan and George H.W. Bush) gives the back of his hand to James Comey’s Senate testimony in an amazingly shallow op-ed published in today’s Washington Post:
James Comey’s Senate testimony on Tuesday was staggeringly histrionic. It has, as Sen. Arlen Specter suggested, the dramatic flair of the Saturday Night Massacre. Presidential emissaries seeking the signature of a critically ill man only to be headed off at the hospital room door by a Jimmy Stewart-like hero defending the law over the pursuit of power. Frank Capra, call your office.
There are several problems with this scene. First, the comparison to Watergate is wholly inapt. Watergate involved a real crime — breaking and entering, with a phenomenally stupid coverup that also fit the definition of criminal obstruction. And the underlying motivation for Richard Nixon’s demise was raw politics. Comey’s tale lacks crime and this venal political intrigue.
Officially, Comey — an obviously admirable fellow — did his best not to disclose that his testimony related to an interpretive disagreement over the highly classified but nevertheless well-known terrorist surveillance program. Sparring between the Office of Legal Counsel (OLC) and the White House, and apparently even within the OLC, over the legal basis for this program in wartime is leagues different from burglary for purposes of political dirty tricks.
That war thing also jettisons any serious motivational comparisons between the two. An honest, if intense, disagreement over how best the president can fulfill his constitutional and statutory functions to prevent another Sept. 11-style attack, which, as it happened, was repeating itself within the territory of our ally Spain at the moment of the hospital intrigue, says more than enough to make the point of difference.
Even if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had “broken the law.” …
The Office of Legal Counsel is not the Supreme Court. It is an important and respected internal executive office that advises the president and attorney general and resolves disputes within executive branch agencies. Executive agencies can’t sue each other over contested points of law, since they all work for the president. To bring a case in federal court, a litigant needs to be concretely adverse to his opponent. One agency may prevail over another, but if it does, it is not by judicial decree but presidential judgment, to which both are answerable.
Therein lies the real shortcoming of the Comey narrative. The OLC gets the first, and often definitive, crack at legal interpretation, provided it is not overridden by the president, who delegated this very power in the first place. Like all such delegations, however, it is both revocable and necessarily bounded in scope by the Constitution and any relevant congressional enactment. Enter the Foreign Intelligence Surveillance Act (FISA), which, subject to exceptions, declares that it is the “exclusive” source of domestic spying authority.
Comey’s testimonial flourish is actually yet another rehashing of whether the president’s responsibility as commander in chief (under Article II) and the broad grant of all “necessary and appropriate” power given in military authorization by Congress trumps the ill-fitting FISA statute, which was drafted in peacetime and whose leisurely espionage structure arguably contemplates exceptions to its warrant regime premised on “other statutes.”
The FISA-presidential power spat invites reasonable legal minds to disagree, as Comey and Attorney General Alberto Gonzales do. Comey, who conceded that he was no “presidential scholar,” decided as acting attorney general to defer to the OLC, which prides itself on being such. Then-White House counsel Gonzales took the side of the president. Gonzales was obviously wrong to think that the signature of a man who recused his office because of illness would have any legal purchase, and why he would pursue it from an official under sedation — if that is what was intended by his trip to the hospital — is mystifying. However, Comey was equally mistaken to think that withholding his signature had to be the final act — when that is necessarily the president’s call.
Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.
Let’s go straight to Marty Lederman, shall we? [All emphasis is Marty’s.]
Doug Kmiec, head of OLC at the end of the Reagan Administration, has a profoundly misguided Op-Ed in tomorrow’s Washington Post in which he tries to minimize the import of James Comey’s testimony — and even goes so far as to insinuate that Comey, Ashcroft and Goldsmith are the ones who acted in an ethically dubious manner!
… Kmiec kicks off his Op-Ed by calling Comey’s testimony “staggeringly histrionic.” Which is, uh, “staggeringly” wrong. Comey is hardly an eager or self-aggrandizing witness. He is about as credible as any witness you’ll ever see, supremely cautious in what he says — he even repeatedly declines to take the bait when some Senators try to elicit testimony that he knows will appear as sound bites damaging to the President and Attorney General — and nothing about his presentation was the least bit histrionic. …
Kmiec then attacks Senator Specter for suggesting that the hospital incident has an air of the Saturday Night Massacre about it — “the comparison to Watergate is wholly inapt,” writes Kmiec, because “Watergate involved a real crime.”
Well, this case involves a “real crime,” too — systematic violations of a very important federal statute designed to protect Americans from wiretapping by their government, 18 U.S.C. 1809. But that’s not really the central point for these purposes, because Specter’s obvious reference was simply to the remarkable parallel in that the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. Attorney General Richardson and DAG Ruckelshaus did not resign in October 1973 because they concluded there had been a “burglary for purposes of political dirty tricks,” in Kmiec’s words. The burglary was an old story. They resigned because the President insisted that they fire prosecutor Archibald Cox when Cox subpoened Nixon’s tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales. …
Kmiec next writes that “[e]ven if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had ‘broken the law.'”
Actually, it would. The OLC conclusion was not that the President “lacked authority” in the first instance to order the surveillance — it was, instead, that a duly enacted statute, FISA, flatly prohibited the President from exercising what would otherwise be his constitutional authority — and that Article II of the Constitution does not give the President the power to disregard such a statutory restriction. …
Then we get to the heart of the matter. Kmiec focuses on two points that happen to be correct, but that do not support his attack on Comey.
First, he notes that the signature that Gonzales and Card were trying to procure from the incapacitated John Ashcroft was a protocol that the President himself had established “to internally discipline an exercise of power.”
Second, Kmiec stresses that for purposes of establishing the official legal views of the Executive branch, OLC’s legal judgments are subject to being overridden by the President himself.
These assertions are both true. (OLC’s legal judgments are binding within the Executive branch, except in the rare cases where they are overridden by OLC itself, the Attorney General, or the President.)
But there is no reason to think that Comey, Ashcroft or Goldsmith thought otherwise. Of course they did not.
Which raises the two central mysteries of the case that Kmiec mangles:
(i) Why did the President seek the AG’s signature, anyway, if it wasn’t required by statute and the President could have the final word?
(ii) If the President does have the final say, why did the entire command structure of the Justice Department threaten to resign when the President exercised that prerogative?
There are probably two reasons that Ashcroft’s certification was thought to be of such importance. The first was that DOJ sign-off was necessary to give some comfort to the NSA. If you were NSA General Counsel, how would you react if the President asked you to engage in conduct that is on its face criminal; if you learned that Jack Goldsmith and John Ashcroft of all officials, concluded that there was no legal way around the statutory restriction and refused to be associated with it; and if the only justification the President offered you for obeying his order was that he was adopting David Addington’s, uh, shall we say idiosyncratic, view of the Commander-in-Chief Clause, notwithstanding that such attorneys as Goldsmith and Ashcroft thought it was untenable?
Would you ask your employees to go ahead and do things that FISA prohibits under those circumstances?
Second, the AG signature might have been necessary to induce the requisite private actors — telcom companies in particular — to continue to go along with the program.
OK, so if Comey and Co. understood that the legal call was ultimately the President’s to make, why the threatened resignations? Well, perhaps it’s enough that Goldsmith, Comey and Ashcroft had personally witnessed this extraordinarily unorthodox and unseemly turn of events. But the precipitating incident, it appears, is that even after Ashcroft heroically roused himself to tell Gonzales and Card to take their certification papers and go home, the President went ahead with the program anyway — opting to embrace the Vice President’s extreme constitutional views even after a series of DOJ officials, in extremely trying circumstances with so much at stake, had bravely and resolutely told the President that those views of the Constitution were dead wrong.
If the President ignored that legal judgment and run roughshod over the views of OLC, the DAG and AG, then of course the honorable course of action would be to resign. It is not that Comey, et al., thought the President was powerless to overrule OLC — they knew full well that he could. It is simply that if the President does not have faith in OLC’s legal judgment about how he must “take care that the law is faithfully executed” in these extraordinary circumstances . . . well, then, their legal advice, and OLC’s traditional role as the principal internal check on executive overreaching, has been fatally compromised. And then resignation is the honorable thing to do.
Kmiec describes this as no more than an everyday “spat” in which “reasonable legal minds” simply disagreed about an arcane issue of some legal technicality. If by this point any of my readers truly believes that is what was happening here, then there’s nothing I could possibly write that would convince you otherwise. Obviously, that is not the way that Ashcroft, Comey and Goldsmith saw it — for which we can be extremely grateful.
Another attorney posting at Balkinization, Brian Tamanaha, makes an additional important point about legal interpretation. He quotes this sentence from Kmiec’s op-ed: “The FISA-presidential power spat invites reasonable minds to disagree, as Comey and Attorney General Alberto Gonzales do,” and writes:
Reasonable minds can indeed disagree about the law, and often do on many issues. But that begs the question of whether this is one of those situations.
To get to the heart of what matters here, an important distinction must be made between an arguable position, and a viable or reasonable position.
With sufficient imagination and motivation, a skilled lawyer can come up with an argument on just about every legal issue. When I worked as a public defender, after staring long enough at a hopeless position, I could usually work up some argument for why the evidence should be suppressed or the charges dismissed. But most of these arguments, I knew, were stretches, legally arguable but obviously weak, losers out of the box. Sometimes the arguments I came up with were reasonable, through the outcome was hard to predict. And sometimes the arguments were strong (which still did not insure that the judge would rule in my favor). Recognizing the qualitative difference between these arguments is an aspect of the judgment required to be a lawyer.
Ordinary legal indeterminacy of this sort, a fact of the law, does not mean that every legal position one comes up with, while arguable, is viable or persuasive, or that every disagreement on a legal issue is reasonable. Kmiec, Comey, and Gonzales know this, as does every lawyer (1.1 million and counting).
Ashcroft and Comey have shown every indication that they strongly support the Bush Administration, and were completely on board in doing whatever it takes to fight terrorism—up to the utmost limit of the outer stretches of the law. There is little doubt that, under the circumstances surrounding that now infamous evening, Comey would have accepted any minimally plausible legal interpretation that would have allowed the Bush Administration to continue its desired activities.
The obvious conclusion to be drawn: Gonzales’s legal justification, while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility.
Given this reality, painting the situation as a legal disagreement between “reasonable minds” is a distortion. Kmiec knows better.
Glenn Greenwald provides some perspective on the praise being heaped on Comey, Ashcroft, and Goldsmith. They deserve praise, he writes, but not haloes.
Cross-posted at Liberty Street.