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"An Apocalyptic Situation": Jim Comey's (Signed But Unsent) Resignation Letter

By Jack M. Balkin

This letter to the President of the United States was written after the President had signed a surveillance order, having been told by the Justice Department that the authorized conduct was criminal:

Over the last two weeks I have encountered . . . an apocalyptic situation, where I and the Department of Justice have been asked to be part of something that is fundamentally wrong. As we have struggled over these last days to do the right thing, I have never been prouder of the Department of Justice or of the Attorney General. Sadly, although I believe this has been one of the institution's finest hours, we have been unable to right that wrong.

I would give much not to be in this position. But, as I told you during our private meeting last week [on March 11, 2004], here I stand; I can do not other. Therefore, with a heavy heart and undiminished love of my country and my Department, I resign as Deputy Attorney General of the United States, effective immediately.

Vice President Cheney's response: Go right ahead. So what if Comey -- and Ashcroft, and Mueller, and Goldsmith, and many other high-ranking DOJ officials, and the General Counsels of the CIA and FBI, would resign en masse?

Bart Gellman explains:

For Cheney, it didn't matter much whether one official or 10 or 20 took a walk. Maybe they were bluffing, maybe not. The principle was the same: Do what has to be done. "The president of the United States is the chief law enforcement officer -- that was the Cheney view," said [Dan] Bartlett, Bush's counselor, who was later briefed into the program and the events of the day. "You can't let resignations deter you if you're doing what's right." Cheney and Addington "were ready to go to the mat," he said, and the vice president's position boiled down to this: " 'That's why we're leaders, that's why we're here. Take the political hit. You've got to do it.'"

For my earlier observations on just how extraordinary these events were -- what they reveal about just how radically lawless the wiretapping program must have been prior to March 2004 -- see this post.

NOTE: Gellman reports Comey as having drafted the letter on March 11th, right after Bush signed the order. But the order is dated March 16th, and refers to Comey's meeting with Bush on the 12th. Gellman reports, as others have done, that after meeting with Bob Mueller on the 12th, the President told Mueller and Comey "to do what Justice thinks needs to be done." In other words, Bush backed down from what Gellman describes as the precipice. But Bush did not amend his directive until March 18th, and from the looks of the Comey letter, Cheney and Addington had continued to prevail as of the 16th. The big reversal must have occurred between the 16th and the 18th. [UPDATE: The Post has now appended endnotes to the story. In endnote 17, Gellman reports that the March 16th version of the Comey resignation letter was virtually the same as a version drafted on the 11th, with the addition of the reference to the Bush/Comey meeting on the 12th. What the existence of the signed letter on the 16th demonstrates, however, is that Comey must have had at least some trepidation as of that date that the President would not follow through on his indication that he would allow DOJ to amend the program to bring it into compliance with DOJ's legal theories. Recall that the March 11th certification had been submitted to the telecom companies, which continued to provide the NSA with access to communications even though that certification did not contain the Attorney General's attestation "that no warrant or court order is required by law, [and] that all statutory requirements have been met," which FISA requires. As of the 16th, Comey and other DOJ officials presumably were of the view that the President and his counsel had themselves authorized violations of the criminal law, and induced the telecoms to break the law, too. Hence the 03/16/04 (signed) version of the Comey resignation letter.]

[UPDATE: I'm told there will be more details clarifying the timeline in the book version, to be published tomorrow (Tuesday).]

Full post as published by Balkinization on September 14, 2008 (boomark / email).