Of the three national nightly news broadcasts, only NBC's Nightly News reported on former deputy attorney general James B. Comey's May 15 congressional testimony regarding what Nightly News anchor Brian Williams called a “rare glimpse of a high-level, late-night power struggle” among the Justice Department, the FBI, and the White House over the National Security Agency's warrantless domestic wiretapping program. As NBC News justice correspondent Pete Williams reported, Comey told the Senate Judiciary Committee that current Attorney General Alberto R. Gonzales, who was then White House counsel, and Andrew Card, then-White House chief of staff, attempted to pressure then-Attorney General John Ashcroft, “at his [hospital] bedside ... to approve an extension of the secret NSA warrantless eavesdropping program over strong Justice Department objections even though Ashcroft was seriously ill,” and did not have power as the attorney general during his recovery from surgery.
Also, former Solicitor General Theodore Olson appeared as a guest on the May 15 edition of Fox News' Hannity & Colmes pre-Republican presidential primary debate coverage, but was not asked about Comey's testimony, even though Comey said at the hearing Olson played a role as a “witness” in the dispute. Instead, Olson was questioned only about Republican presidential candidate Rudy Giuliani's then-upcoming performance in that evening's debate. Olson is an advisor for Giuliani's presidential campaign and appeared on Hannity & Colmes to discuss Giuliani's candidacy.
Comey, who served as acting attorney general while Ashcroft was ill, testified: “In the early part of 2004, the Department of Justice was engaged -- the Office of Legal Counsel, under my supervision -- in a re-evaluation both factually and legally of a particular classified program,” the NSA's controversial warrantless wiretapping program. Comey testified that before Ashcroft fell ill, the two had engaged in “a private meeting” prior to the March 11, 2004, deadline for the program's renewal and discussed “concerns as to our ability to certify its legality.” Comey added that Ashcroft “was taken that very afternoon to George Washington Hospital, where he went into intensive care and remained there for over a week.”
Comey told the committee that on March 9, 2004, while Ashcroft was hospitalized, “we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality.” The following evening, according to Comey, he received a call from Ashcroft's chief of staff, David Ayers, that Card and Gonzales “were on their way to the hospital to see Mr. Ashcroft” about re-authorizing the NSA program. Comey testified that he immediately went to the hospital to intercept Card and Gonzales:
COMEY: 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.”
SEN. CHARLES SCHUMER: But he expressed his reluctance or he would not sign the statement that they -- give the authorization that they had asked, is that right?
COMEY: Yes. And as he laid back down, he said, “But that doesn't matter, because I'm not the attorney general. There is the attorney general,” and he pointed to me, and I was just to his left. The two men did not acknowledge me. They turned and walked from the room. And within just a few moments after that, [FBI] Director [Robert S.] Mueller arrived. I told him quickly what had happened. He had a brief -- a memorable brief exchange with the attorney general and then we went outside in the hallway.
Comey said Card “demanded that” he “come to the White House immediately,” to which Comey responded: "[A]fter the conduct I had just witnessed, I would not meet with him without a witness present." Comey asked Olson, who was then solicitor general, to go with him to the White House, apparently summoning Olson from a dinner party to do so. Comey added: “I was very upset. I was angry. I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.” Comey stated that after he briefed Olson and other Justice Department officials on the events that had just transpired, the group went to the White House to discuss the matter further. Initially, according to Comey, Olson was not allowed to attend the meeting with Card.
Despite the Justice Department's objections, according to Comey, "[t]he program was reauthorized" the following day “without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.” Comey added that he “believe[d]” that Ashcroft, Mueller, Ayers, and Comey's chief of staff, as well as others, were prepared to resign as well over the dispute. Eventually, according to Comey, President Bush intervened and made changes “the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.” In August 2006, a federal judge ruled that the NSA program to be unconstitutional. The administration is appealing the decision.
From the May 15 edition of NBC News' Nightly News:
BRIAN WILLIAMS: We're back here in London tonight. This next story's out of Washington. It's about a rare glimpse of a high-level, late-night power struggle that took place in a hospital room of a former attorney general suffering from what turned out to be a severe inflammation of the pancreas. Even though this all happened a few years ago, the details revealed just today could spell new trouble for the current attorney general, Alberto Gonzales. The story from NBC News justice correspondent Pete Williams.
[begin video clip]
PETE WILLIAMS: Sounding like a movie plot, it happened three years ago in this Washington, D.C., hospital. Lying in bed there, the attorney general, John Ashcroft. Standing at his bedside, Alberto Gonzales, then-White House counsel, and Andy Card, White House chief of staff. They wanted him to approve an extension of the secret NSA warrantless eavesdropping program over strong Justice Department objections, even though Ashcroft was seriously ill. Also there, the number two man at Justice, James Comey, acting attorney general. He said today the scene started a crisis that nearly brought mass resignations from the Justice Department.
COMEY: I thought I'd just witnessed an effort to take advantage of a very sick man.
P. WILLIAMS: He said Ashcroft recited reasons why it should not be approved. Later that night, Comey says, an agitated Card summoned him to the White House.
COMEY: I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.
P. WILLIAMS: Eventually, Comey said, President Bush defused the crisis, directing changes to the program based on Justice Department concerns. Senator Charles Schumer commended Comey for opposing the man who would become his boss as attorney general.
SCHUMER: The story is a shocking one. Makes you almost gulp.
P. WILLIAMS: But the White House today dismissed Comey's suggestion that the hospital meeting was inappropriate.
TONY SNOW (White House press secretary): You've got somebody who has splashy testimony on Capitol Hill. Good for him. We're not talking about internal deliberations.
[end video clip]
P. WILLIAMS: Tonight, the White House says the president stands by Gonzales, who says he wants to stay on the job. Pete Williams, NBC News, at the Justice Department.