Natural Born Liars (redux)

Last week, DB was awed by the reflexive nature of Andrew Card's lying:

COMEY: I took the call. And Mr. Card was very upset and demanded that I come to the White House immediately.

I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.

He replied, "What conduct? We were just there to wish him well."

And I said again, "After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States."

Marvelous. Imagine the audacity of delivering a complete lie to a former New York criminal prosecutor, at that moment Acting Attorney General... Imagine calling him in anger over an incident and then denying the incident even occurred... Imagine denying the incident even though Comey himself had personally witnessed it only moments earlier... Imagine handing him this bogus account of their encounter in response to Comey's insistence that an objective third party be present at a future meetings.

Think how naturally one must lie to even try to pull that one off.

Now we learn that it gets even worse. Digby catches this item in Newsweek about the morning after:

Comey didn't tell the Senate panel that the bad feelings were stoked even more the next morning when White House officials explained the hospital visit by saying Gonzales and Card were unaware that Comey was acting A.G. (and therefore the only person authorized to sign off on the surveillance program), according to a former senior DOJ official who requested anonymity talking about internal matters. Top DOJ officials were furious, the source said. Just days earlier, Justice's chief spokesman had publicly said Comey would serve as "head of the Justice Department" while Ashcroft was ill. Justice officials had also faxed over a document to the White House informing officials of this. When a Gonzales aide claimed the counsel's office could find no record of it, DOJ officials dug out a receipt showing the fax had been received. "People were disgusted as much as livid," said the DOJ official. "It was just the dishonesty of it." A Gonzales aide at the time (who asked not to be ID'd talking about internal matters) said there was a "miscommunication" and "genuine confusion" over who was in charge.

Fantastic. The administration is a cadre of congenital liars. They couldn't tell the truth if they tried. And they never do.

Kmiec responds to Lederman

Marty Lederman did a superior job of responding to Doug Kmiec, so DB should probably just sit back and wait for his response to Kmiec's response.

But I'll just chime in with a couple things. First, Kmiec writes with considerably more respect for Lederman and his readers than he does for the readers of the Washington Post (and therefore, the public at large). Had his op-ed been written with a similar tone, it would have elicited a less abrasive response from some bloggers, myself not least.

However, Kmiec is still unpersuasive. In fact, he doesn't really address the substance of Lederman's points. I'll wisely let Marty deal with all that. But I will note that he didn't address the things that bothered me (not that I have any reason to believe he read my post), namely that the comparison of the threat of resignations was compared to the Saturday Night Massacre, not the actual break-in at Watergate.

My other complaint, which had nothing to do with the legal aspects that Lederman addressed, was that Kmiec began his piece by stating that Nixon's demise was somehow different, as it the result of playing politics. But then he ended his op-ed by implying that Bush is also playing politics (and to that end, should be doing it better).

My only response to the substance of Kmiec's reply that will likely be addressed by Lederman is in regards to this paragraph:

Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection. Were the "exclusivity" language in FISA as absolute as Marty's reference to the criminal liability under section 1809 implies, mere tinkering with a program that, until recently, was not operating with a FISA warrant or some other as yet publicly unidentified approval or order of the FISA court, would not be capable of obviating the legitimate statutory concerns.

It still doesn't. This is precisely the point that Lederman and so many other bloggers were making: What on earth could they have been doing that didn't sit well with this DOJ?

The fact that this program was eventually made acceptable to Comey, Ashcroft & Co. does nothing to legitimize the view that some minimal violation of FISA was appropriate. As Bruce Fein has warned, let's not make Comey and Ashcroft into heroes just for demonstrating that they do, indeed, have some limits.

Natural Born Liars

It's going to take DB a while to fully digest James Comey's testimony, but I don't want to ever forget this moment:

SCHUMER: What happened after Mr. Gonzales and Card left? Did you have any contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up to us and said that I had an urgent call in the command center, which was right next door. They had Attorney General Ashcroft in a hallway by himself and there was an empty room next door that was the command center.

And he said it was Mr. Card wanting to speak to me.

COMEY: I took the call. And Mr. Card was very upset and demanded that I come to the White House immediately.

I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.

He replied, "What conduct? We were just there to wish him well."

And I said again, "After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States."

Stunning. Comey might have added, "After that comment, I will not meet with you without a witness."

It's been obvious for sometime that this is an administration filled with complete liars. But there might not be a better example of somebody lying so reflexively.

I mean, forget about the call to Ashcroft's wife. Forget about her anxious call to Ashcroft's Chief of Staff. Forget about the ensuing call to Comey. Forget about the timing of the visit. Forget about Ashcroft's condition and that he wasn't taking phone calls or visitors. Forget about the fact that they brought the envelope with them and explained what was in it. Forget about the fact that Gonzales and Card walked out of the room immediately following their rejection. Forget about the fact that there were other people in the room watching the entire episode.

Forget all the reasons that story is a blatant lie and just think about the fact that Card was saying this to Comey. Comey witnessed the entire thing. It reminds me of this scene in Repo Man:

OLY: The Rodriguez Brothers are suing us for malicious damage, medical expenses and harassment, for a car they own.

BUD: The Rodriguez Brothers are... You believe the Rodriguez Brothers? They're a couple of scumbags!

OLY: I know, but we need to sit down and get our stories straight.

BUD: You're taking their word over mine!

OLY: I WAS THERE! REMEMBER?

Did Card really think for a second that Comey would buy that insane idea? He couldn't be trying to imply to Comey that it was going to be a "you have your story, we have ours" situation because he was simultaneously trying to shake Comey from the notion that he needed to have a witness present. And to that end, could he have possibly offered a less effective reply?

The first thing out of his mouth was an obvious lie to a person who clearly knew the truth.

As Digby often writes, "they lie as easily as they breathe."

Clarifying Kmiec

After publishing my last post on Doug Kmiec's lacking op-ed, DB called it a night. Waking up, refreshed, it now occurs to me that Kmiec did in fact mean what I thought he meant by this:

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.

"Seeking a revival of diminished executive authority" reads, of course, like Kmiec is arguing that Bush wants to return to some period in which the president was relatively weak.

I decided last night this was a typo of sorts because it is just so ridiculous. After sleeping, I realize that this is, if not a typo, then just an extrememly poorly-phrased sentence. I think Kmiec means this:

Bush administration officials are often portrayed as seeking [to revive a currently] diminished executive authority.

Note, of course, that even this correction doesn't lend any aid to his overall argument, since (as I wrote last night) he begins his column by claiming Comey, Ashcroft & Co.'s threats to resign aren't like the Saturday Night Massacre because Nixon's situation involved politics. But then, Kmiec ends his column by conceding that Bush is playing politics (and should be doing a better job, at that).

On a related note, I see that Marty Lederman also wrote about Kmiec (and, naturally, did a much finer job than I). Marty was also confused by this paragraph, including the second, completely ambiguous sentence:

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.

Marty, as I did, takes issue with "every time." But he also took this sentence to mean that Kmiec was calling Comey and Ashcroft's actions "futile and ethically dubious maneuvers" and that they didn't understand executive power.

I thought, and still think, he meant that Gonzales and Card were engaging in these futile and ethically dubious maneuvers, while Comey and Ashcroft's contributions were frivolous threats of resignation. I'm not sure whom he was indicting with the charge of lack of understanding. Probably all of them.

In any event, a truly awful op-ed.

UPDATE: I'm not sure why there's no Haloscan comment link for this post. Maybe it has something to do with the fact that I saved it briefly before publishing. I've never done that before. In any event, please use this link for any comments.

Kmiec on Comey, pure nonsense

Liz Cheney was apparently not available to obfuscate on behalf of the administration, so the Washington Post today features an op-ed, "Testimony in a Teacup," by Douglas W. Kmiec.

The writer, a professor of constitutional law at Pepperdine University, was assistant attorney general and head of the Office of Legal Counsel to Presidents Ronald Reagan and George H.W. Bush.

He's certainly got the credentials, but his case is quite unpersuasive. In his defense, it is easy to be distracted by the spectacular views at Pepperdine.

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.

Breaking and entering is a "real crime," unlike something that was so egregious even people who were OK with violating FISA couldn't sign off on it. No political intrigue? If this story lacks political intrigue (Why would Kmiec use the word "venal" to describe the Saturday Night Massacre?), I would hate to be around when such a story pops up.

Also, Kmiec is following in Lindsay Graham's footsteps by implying that Nixon was simply trying to cover up the break-in. You may remember Graham trying to impeach the credibility of John Dean at the Censure hearings:

Senator Graham. Did he cover up a crime that he knew to be a crime?

Mr. Dean. He covered it up for--

Chairman Specter. Senator Graham, let him answer the question.

Mr. Dean. He covered it up for national security reasons.

Senator Graham. Give me a break.

Mr. Dean. I am serious.

Senator Graham. He covered it up to save his hide.

Mr. Dean. No, sir. You are showing you don't know that subject very well.

Senator Graham. What is the national security reason to allow a President to break into a political opponent's office?

Mr. Dean. The cover-up didn't really concern itself with--

Senator Graham. What enemy are we fighting when you break into the other side's office?

Mr. Dean. Senator, if you will let me answer, I will give you some information you might be able to use.

Senator Graham. Yes, please.

Mr. Dean. He covered it up not because of what had happened at the Watergate, where I think he would have cut the reelection Committee loose. He kept them covered up because of what had happened while they were at the White House, which was the break-in into Daniel Ellsberg's psychiatrist's office. And that, he believed, was a national security activity."

And nobody resigned over the break-in. It was because of the way Nixon abused the DOJ in order to get the results he wanted, rather than the results he was getting. Sound familiar?

A few paragraphs later, Kmiec writes:

Even if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had "broken the law."

I'm sorry, but every other wartime president has not pursued the ability to collect digital information on limitless amounts of American citizens (if that's even the upper boundary of their scheme). Plus, the majority of wartime presidents served prior to the enactment of FISA. No others have deliberately violated it, as far as we know. And it's hard to imagine any president, past or future, offering as bogus a justification for doing so as Bush's suggestion that the AUMF somehow repealed FISA.

Comey might not have been willing to say that Bush broke the law (despite his alleged "histrionics"), but what conclusion can you draw otherwise? FISA explicitly stated that the president could not wiretap domestically without a warrant. If the DOJ says he also lacked any constitutional authority to get around that, then he broke the law.

Kmiec goes on and on like this. Towards the end he writes that "Comey was equally mistaken to think that withholding his signature had to be the final act -- when that is necessarily the president's call."

How could anybody conclude that Comey's problems with the entire scenario stemmed from an idea that he had the final say? Absurd.

Finally, Kmiec writes this:

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.

When has this administration ever -- EVER -- been portrayed as seeking to revive diminished authority?? That has to be simply a mistake by Kmiec. Nobody could make that argument outside the Bizzaro Universe.

But assume he was trying to say the opposite, that the Bush administration seeks to restore what they believe is a proper, more expansive authority. Doesn't the fact that this entire episode stems from that objective validate the idea Kmiec is trying to shoot down? The Bush administration could have gone to a completely compliant Congress and asked for more authority at any time. They actually turned down Sen. DeWine 's offer to expand their authority. They chose instead to exercise authority not granted by Congress just because they wanted to prove they had the political muscle to do it.

"And the underlying motivation for Richard Nixon's demise was raw politics," Kmiec wrote up top, differentiating Nixon from Bush. Now he concludes his column by suggesting that the Bush administration does have political aims in all of this? (Again, if you assume he's not writing from Bizzaro Universe.)

And what made the Saturday Night Massacre -- and this episode -- so intriguing is that people don't resign "every time" there is a disagreement. That's the kind of argument a teenager would make. As Glenn Greenwald put it in this excellent radio show yesterday, "the entire top level of the law enforcement apparatus of our country was going to resign in protest" over this.

If that's happening every time there's a disagreement in this administration, we're in even worse shape with Bush at the helm than anybody could even imagine. It's bad enough that it even happened once.

Bad faith

At the March 31, 2006, Senate Judiciary Committee hearings, examining Sen. Russ Feingold's motion to censure the president for his illegal wiretapping program, Chairman Arlen Specter made the question of "bad faith" on the part of the president the central issue in his opposition to censure.

Chairman Specter. I was looking for the comments on bad faith or good faith, and finally we heard it from you, Mr. Schmidt, that there is no evidence of bad faith. It seems to me that before a censure resolution can get anywhere, can rise to the level above being frivolous, there has to be an issue of bad faith. Senator Feingold's resolution doesn't say a word about bad faith.

Don't you think, Mr. Dean, that that is an indispensable prerequisite, a sine qua non, to censure the President? I note that your 2004 book, Worse than Watergate, called for the impeachment of President Bush. So you were pretty tough on him long before this surveillance program was noted.

But to come back to good faith and bad faith, don't you think there has to be some issue of bad faith?

Mr. Dean. In Worse than Watergate, I didn't call for impeachment. I laid out a case that could be made for impeachment. I do make a distinction.

As far as Senator Feingold's resolution, when I read those ``whereas'' clauses, it seems to me that there is evidence of bad faith. First of all, there is certainly a prime facie case that--

Chairman Specter. Mr. Dean, do you think that Senator Feingold would shy away from those two magic words, ``bad faith,'' when they are so much easier to define than the ``whereas'' clause? I recollect his 25-minute speech on the floor. I wanted to ask him about bad faith and didn't get a chance to.

Mr. Dean. I don't recall bad faith as being a prerequisite to censure.

Chairman Specter. Well, it is not a matter of recollection.

Mr. Dean. It is conduct.

Chairman Specter. Don't you think that it takes bad faith to censure a President?

Mr. Dean. I think in gathering my thoughts to come back here, I thought, you know, had a censure resolution been issued about some of Nixon's conduct long before it erupted to the degree and the problem that came, it would have been a godsend.

Chairman Specter. Well, then the Congress was at fault in not giving him a warning signal.

Mr. Dean. It would have helped.

In light of James Comey's testimony yesterday, is there any way on earth that Specter can still claim the president acted in "good faith?"

Consider this response from Bruce Fein (emphasis mine):

Mr. Fein. Let me make a couple of observations about bad faith or secrecy. One, we don't have the information, if it exists, indicating what advice President Bush received just before he commenced the warrantless surveillance program. You don't know, I don't know, and he is resisting giving that information to you that could dispel any uncertainty on such a critical matter. That still is secret.

We sure know now. The entire leadership of the DOJ was prepared to resign over it. Can there be any doubt at this point that the president acted in bad faith?

Finally, Sen. Feingold responded to the "bad faith" argument:

Sen. Feingold: Now, Mr. Chairman, before I ask my first question, I want to get to this question of--you didn't help me draft this thing, but if you want the words ``bad faith'' in there, let's put them right in, because that is exactly what we have here.

The whole record here makes me believe, with regret, that the President has acted in bad faith both with regard to not revealing this program to the appropriate Members of Congress, the full committees that were entitled to it, but more importantly by making misleading statements throughout America suggesting that this program did not exist--I understand if he didn't talk about--and then after the fact dismissing the possibility that he may have done something wrong here, that he may have broken the law. So call it bad faith, call it aggravating factors.

Well, Sen. Specter?