Jack Goldsmith

Jack Goldsmith is a former attorney of the Office of Legal Council. He nearly resigned because of a top secret surveillance program. Former Justice Department official and FBI Director Robert Mueller were prepared to resign, with him, because of the same program. All three men were in the hospital room attempting to stop Alberto Gonzales and Andy Card from making John Ashcroft sign authorization to a secret program.

Goldsmith eventually resigned after overruling a John Yoo torture opinion.

Goldsmith was concerned, however, that the White House might overrule him. So he made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. “If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. “The timing was designed to ensure that the decision stuck.”

The White House drafted these opinions to justify their consolidation of presidential power. The NSA was not allowed to view legal opinions that involved their agency. The affect was the Bush administration weakened executive power for future generations.

In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”

What is surprising about the legal fights within the administration is how well John Ashcroft comes off. He hated Yoo's opinions and thought tribunals were a bad idea. It's scary when conservative laywers feel that the Bushies are extreme. These people aren't tree-hugging hippies. They are hardcore Republican. Even they were shaking their heads and saying "WTF."

Hat tip to Mustang Bobby.

Justice Department Cards Crumbling Down

The testimony between of Jemes Comey is amazing. Alberto Gonzales and Andy Card were attempting to go around acting Attorney General Jame Comey by having an ailing John Ashcroft approve a domestic spying program. The matter is made more distasteful by the fact Ashcroft was bed ridden in George Washington hospital.

COMEY: 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."

President Bush ducked the question of whether he ordered Gonzales and Card to have Ashcroft approve the domestic spying program.

O'Donnell: There's been some very dramatic testimony before the Senate this week from one of your former top justice department officials, who describes a scene that some Senators called stunning about a time when the warrantless wiretap program was being reviewed. Sir, did you send your then chief of staff and White House counsel to the bedside of John Ashcroft, while he was ill to get him to approve os that program and do you believe that kind of conduct from White House officials is appropriate?

Bush: Kelly, there's a lot of speculation about what happened and what didn't happen and I'm not going to talk about it…It's a very sensitive program…

Bush then proceeds to go into usual talking points about the war on terror.

Democrats in the Senate Judiciary Committee held a Statement of No Confidence in Alberto Gonzales.