With the White House's decision to nominate James Comey as its next FBI director, the media has been stumbling over itself
to recount a now-famous story in Washington about how Comey, while
serving as the number-two official at the Justice Department, stood up
to the Bush White House over the administration's warrantless
That story goes something like this.
In March 2004, Bush administration officials were desperate to renew their warrantless wiretapping program, but some of their colleagues in the Justice Department refused to sign off on it. The White House
decided to take the issue straight to Attorney General John Ashcroft,
who was gravely ill in the hospital with gallstone pancreatitis. Comey,
Ashcroft's deputy, got wind of the plan and raced to the hospital to
intercept the White House officials. The 6-foot-8 inch lawyer lumbered
up the hospital stairs and beat White House Chief of Staff Andy Card
and White House Counsel Alberto Gonzales to the room. Once there, Card
and Gonzales did not acknowledge Comey. But Ashcroft refused to sign
off on the order reauthorizing the program. Card and Gonzales left the
room in silence.
White House eventually went over Ashcroft's head and pushed through
the authorization anyway, prompting Comey and a group of other Justice
Department officials to threaten to resign en masse if changes were not implemented to the program. It's a confrontation that now stands out on Comey's
resume as a shining example of his commitment to civil liberties.
is Comey really the fierce civil liberties advocate that his supporters will likely make him out to during his upcoming confirmation process? After all, it
was Comey who oversaw the aggressive investigation into the leak of the
covert CIA operative Valerie Plame's identity -- an investigation that
ultimately resulted in the jailing of New York Times reporter Judith Miller. That piece of history should have civil rights advocates looking twice at Comey.
White House political advisor Karl Rove at the center of an
investigation into how columnist Robert Novak learned of Plame's identity,
Comey urged Ashcroft -- who knew Rove back from when he had worked on
Ashcroft's senatorial campaign -- to recuse himself from the case.
Ashcroft heeded Comey's advice, and Comey appointed his close friend (and the godfather to one of his children) Patrick Fitzgerald, a U.S. attorney in Chicago, to lead the investigation.
Fitzgerald carried out a meticulous and aggressive investigation
that spared no one, including President George W. Bush and Vice
President Dick Cheney, both of whom were interviewed as part of the probe. But that
investigation also put Fitzgerald -- and Comey -- on a collision course
with media freedoms. Refusing to reveal her sources to Fitzgerald,
Miller was cited for contempt of court and spent 85 days in prison. And
Miller wasn't the only one -- Time's Matthew Cooper very nearly landed in prison as well. Instead, he relented and revealed his sources at the last minute.
Comey is now in line to take over the FBI as the Justice Department is mired in a scandal over its decision to seize
Associated Press phone records and to name a Fox News reporter as a
co-conspirator, in cases that both center on unauthorized leaks of
classified information. As in the Plame investigation, the government
has shown a willingness to scale back First Amendment protections in
pursuit of national security leaks -- a tactic that Comey
didn't reject during his time in the Bush
Crucially, Comey can claim some distance
from Fitzgerald's actions if the Plame case comes up during the confirmation process. While Fitzgerald provided Comey with periodic updates about
the investigation's progress, it appears Comey was not intimately involved in the probe and granted Fitzgerald a great deal of independence. That served the
dual purpose of insulating the Justice Department from charges that it
was trying to meddle with a politically explosive investigation while
also distancing the agency from an investigation that was putting reporters in
jail. Nonetheless, it is important to note that Comey had oversight
powers of the investigation -- Ashcroft had recused himself from the
case -- and that it was Comey who decided
not to press charges against former State Department official Richard
Armitage, the original source for the Novak column that outed Plame.
As the New York Times notes,
Comey's selection is politically expedient for the Obama
administration. As a former Bush administration official, he is
unlikely to elicit much opposition from Republicans in the Senate. And
his record of standing up to the Bush White House is likely to endear
him to Democrats.
Comey's last-minute stand against the wiretapping program isn't the only episode from his career that might be aired before the Senate.
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