Kmiec v. Lederman - Round II:
Douglas Kmiec has a guest post on Balkinization responding to Marty Lederman on the Comey testimony, the late night hospital visit, executive power, and all that. It's worth a look.
Sandy Levinson provides some commentary here.
Related Posts (on one page):
- Kmiec v. Lederman - Round II:
- Kmiec v. Lederman on Comey Testimony:
I do think Kmiec is correct, however, in identifying the histrionic account of the hospital visit. When I read the transcript, my best explanation for the unnecessarily dramatic account was that, it appears, Comey held Ashcroft in such high regard that he was committed to presenting this as a heroic moment for Ashcroft. In other words, that presentation was designed to valorize Ashcroft, not to demonize the administration per se.
Even though I think Kmiec is right about that, I'm not sure why it matters. Even the most antiseptic statement of facts - that Card and AGAG tried an end-around Comey by approaching Ashcroft in his hospital bed - is utterly inexcusable.
I also think it was pretty telling that despite almost being badgered into saying the NSA program was illegal Comey refused to say so in fact had to backtrack when he realized that he had come close to saying that the program was illegal because he had not certified it.
Comey was not discussing the legality of the underlying program, he was discussing the effect of the failure to obtain certification on it.
If you were merely making that point, that's fine, but if you're trying to imply that Comey was commenting on the underlying legality of the program (i.e. the 4th Amendment and Separation of Powers questions), then you have badly misread the exchange.
Lee
Kovarsky: Given that Kmiec calls the tactic "futile and ethically dubious", I fail to see where he is excusing Gonzales's approach to Ashcroft in his hospital bed.
I take Kmiec's point to be that the event was not as newsworthy as Comey made it out to be. I find the behavior inexcusable, I don't perceive the excuse of that behavior to have been Kmiec's analytic conceit in the WSJ editorial.
I actually agreed with Kmiec on the issue of histrionics - I just don't see why that matters to the underlying question of administration apparatchik culpability. I'm sorry if I created the impression that I thought Kmiec's objective was to excuse AGAG.
Kmiec reserved that ("excusing Gonzales's approach to Ashcroft in his hospital bed") for a little later, here, where he said various things like this:
I speculate, but do not know, that Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation
Yes, OBL was going to show up in the morning and knock over a few more skyscrapers if Gonzales couldn't manage to extract a signature from the heavily-sedated non-AG. Because, as commenter "Charlie" at Balkin earnestly suggested, it was possible that the FISA court had been infiltrated by Al Qaeda and therefore was not granting warrants.
kaz: "To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior."
It is indeed "corrupt or venal behavior" to promote an particular "interpretation of Constitution or statute" if that interpretation is patently bogus. The fact that lots of credible Republicans were ready to quit tends to create the impression that they were objecting to just such an interpretation.
I completely agree with jbg. The idea that Gonzales was just visiting Ashcroft in the middle of the night with the Chief of Staff to make sure that Ashcroft was okay with Comey's legal rejection of the wiretapping is ridiculous. He could have called Comey to confirm Ashcroft's consent (Comey isn't going to just lie outright and get fired once Ashcroft recovers). He could have asked Comey to be present at the meeting, so that there would be no question about undue coersion of a medicated or exhausted Ashcroft. He could have contacted others at DOJ who presumably knew of Ashcroft's agreement with Comey. Instead he attempted to covertly visit Ashcroft and potentially have him sign off on extremely important legal documents while medicated and without the aid of his staff and aides. There is no possible way that this was done with anything but the most cynnical and deliberate intent.
Reality, 1; spin, 0.
The context of this exchange makes clear that Comey and Specter were discussing was the process question of whether the DOJ signature was required on the authorization, not the underlying substantive question of whether the program in question was legal.