For all the excitement surrounding James Comey’s testimony this week, there’s been one missing element: a counter-argument. A couple of days ago, Tony Snow said, “Jim Comey gave his side of what transpired that day.” And what’s the other side? No one knows; the Bush White House and its allies have been surprisingly quiet.
Finally, after days of waiting for some kind of response, Douglas Kmiec, head of the Office of Legal Counsel to Ronald Reagan and H.W. Bush, stepped up to the plate today to take a swing.
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.
Even if we look past the weak ad hominem lede — if you watch the clip, there’s nothing “histrionic” about it — Kmiec’s first argument is that there’s no underlying crime here? Has he not been paying attention?
Let’s see, there’s the potential crime of the warrantless searches themselves, the potential crime of the White House ignoring the Justice Department and reauthorizing its own surveillance program, the potential crime of the showdown in Ashcroft’s hospital room, and the legally dubious cover-up that ensued. This is a tale that “lacks crime”?
For that matter, Kmiec is far too quick to dismiss the Watergate comparison. As Marty Lederman noted, “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 subpoenaed Nixon’s tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales.”
Lederman and emptywheel shred the details of Kmiec’s arguments more effectively than I can, but I’d be remiss if I didn’t note his conclusion.
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.
This is just entirely detached from reality. The fight between Comey/Goldsmith and Card/Gonzales was not an “honest disagreement.” The latter pair tried to take advantage of a seriously ill man who had already delegated his authority, and then went on to reauthorize its own legally dubious surveillance program, overriding the judgment of the Justice Department.
Moreover, Kmiec’s use of the phrase “ethically dubious maneuvers” seems to imply that it was Comey was in the wrong here. All he did was stand up for the rule of law, and then use his threat of resignation to add a layer of accountability to an illegal administration program. Where, exactly, is the “ethically dubious maneuver”?
If the president’s allies are going to offer a defense for what transpired, they’ll have to do far better than this nonsense.