There was nothing illegal that happened. There was a disagreement over this FISA statute. Nonetheless, the way it went about was so disrespectful of the institution: that’s what leaves a bad taste.Give me a break.
A review of the facts is in order. Shortly after 9/11, the administration ordered up a vast program of domestic spying that was in apparent violation of the Foreign Intelligence Surveillance Act (FISA). The White House had obtained assent of the Justice Department’s Office of Legal Counsel, led by John Yoo, to proceed with this program of illegal wiretapping. In October of 2003, Jack Goldsmith was confirmed as the head of the OLC. Goldsmith undertook a review of some of the more controversial opinions of Mr. Yoo.
It became obvious that the legal and factual underpinnings of the so-called Terrorist Surveillance Program did not pass constitutional muster. In March of 2004, Attorney General Ashcroft and Deputy Attorney General Comey discussed the matter and decided that the program was illegal, and that therefore, they could not sign off on it. Shortly thereafter, Ashcroft became ill, and was hospitalized. DAG Comey became the acting Attorney General.
The details of the hospital visit are well-known. On March 10, 2004, Ashcroft and Comey informed Gonzales and White House Chief of Staff Andrew Card that the program –which had been in effect for over two years -- was illegal.
The White House went ahead with it anyway, though two days later the President gave Comey authority to suggest changes to address his concerns. For the next two or three weeks the program went forward, without any changes even though Ashcroft, Comey, FBI Director Mueller, and others (Goldsmith?) had threatened to resign over it.
Later, Alberto Gonzales testified that there was no serious disagreement about the program. Several senators have suggested that this testimony may have been false, and they gave the Attorney General a chance to revise it. He declined to do so.
Get out your score sheets. There was a two year period when the government was engaged in an illegal program of spying on Americans without a warrant in direct violation of the FISA law. In their defense, they had found a partisan lawyer to give them his okay, but reliance on mistaken legal advice is not generally a defense. Then there was a period of two or three weeks, where the Justice Department had explicitly told the White House that the program was illegal, but they went forward with it anyway. And then there is “Fredo” Gonzales’ crime of perjury.
The Republicans have managed to lower the standard of conduct for this White House to “as long as no crimes were committed.” We saw this in the Scoter Libby affair, too. (In that case, it is urged by Republicans that since no crime was committed, it was okay for him to lie to a Federal Grand Jury.)
“There was nothing illegal that happened.” That’s a pretty low bar. But it is a break with reality to suggest that the White House cleared it.
“… and tell ’em Big Mitch sent ya!”