Part 3
CQ Transcripts Wire
Tuesday, May 15, 2007
1:48 PM
COMEY: Right.
We had the president's direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.
And so we then set out to do that. And we did that.
SCHUMER: OK.
So let me just (inaudible) -- this is an amazing story, has an amazing pattern of fact that you recall.
SPECTER: Mr. Chairman, could you give us some idea when your first round will conclude?
SCHUMER: As soon as I ask a few questions here. Fairly soon.
(OFF-MIKE)
SCHUMER: Yes.
And, Senator Specter, you will get the same amount of time.
SCHUMER: I thought with Mr. Comey's telling what happened...
(CROSSTALK)
SPECTER: Just may the record show that you're now 16 minutes and 35 seconds over the five minutes and...
SCHUMER: I think the record will show it.
SPECTER: Well, it does now.
(LAUGHTER)
SCHUMER: OK, thank you.
And I think most people would think that those 16:35 minutes were worth hearing.
SPECTER: Well, Mr. Chairman, we do have such a thing as a second round, and there are a lot of senators waiting...
SCHUMER: Yes, OK.
Let me ask you these few questions...
SPECTER: ... including a Republican.
SCHUMER: I'm glad you're here, Senator Specter. I know you're concerned with the issue.
SPECTER: Lonely, but here.
(LAUGHTER)
SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?
COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded -- the department as a whole -- was unable to be certified as to its legality. And that was my concern.
SCHUMER: OK.
And you also believe -- and you had later conversations with Attorney General Ashcroft when he recuperated, and he backed your view?
COMEY: Yes, sir.
SCHUMER: Did you ever ask him explicitly if he would have resigned had it come to that?
COMEY: No.
SCHUMER: OK.
But he backed your view over that what was being done, or what was attempting to being done, going around what you had recommended, was wrong, against the law?
COMEY: Yes.
And I already knew his view from the hour we had spent together going over it in great detail a week before the hospital incident.
SCHUMER: Yes.
And the FBI director, Mueller, backed your view over that of Mr. Gonzales as well -- is that right? -- in terms of whether the program could continue to be implemented the way Counsel Gonzales wanted it to be.
COMEY: The only reason I hesitate is it was never Director Mueller's job or position to be drawing a legal conclusion about the program; that he was very supportive to me personally. He's one of the finest people I've ever met and was a great help to me when I felt a tremendous amount of pressure and felt a bit alone at the Department of Justice.
But it was not his role to opine on the legality.
SCHUMER: How about Jack Goldsmith, the head of the Office of Legal Counsel? Did he opine on the legality?
COMEY: Yes. He had done a substantial amount of work on that issue. And it was largely OLC, the Office of Legal Counsel's work, that I was relying upon in drawing my -- in making my decision.
SCHUMER: OK. Just two other questions.
Have you ever had the opportunity to recall these events on the record in any other forum?
COMEY: No.
SCHUMER: OK. And...
COMEY: I should...
SCHUMER: Go ahead.
COMEY: I was interviewed by the FBI and discussed these events in connection with a leak investigation the FBI was conducting.
SCHUMER: And you gave them these details then.
COMEY: Yes.
SCHUMER: Thank you.
COMEY: But not -- by forum I've never testified about it.
SCHUMER: And after you stood your ground in March of 2004, did you suffer any recriminations or other problems at the department?
COMEY: I didn't. Not that I'm aware of.
SCHUMER: OK.
Well, let me just say this, and then I'll call on Senator Specter who can have as much time as he thinks is appropriate.
The story is a shocking one. It makes you almost gulp.
And I just want to say, speaking for myself, I appreciate your integrity and fidelity to rule of law. And I also appreciate Attorney General Ashcroft's fidelity to the rule of law as well, as well as the men and women who worked with you and stuck by you in this.
When we have a situation where the laws of this country -- the rules of law of this country are not respected because somebody thinks there's a higher goal, we run askew of the very purpose of what democracy and rule of law are about.
SCHUMER: And this -- again, this story makes me gulp.
Senator Specter?
SPECTER: May the record now show that we're 21 minutes and 22 seconds beyond the five-minute allocation.
And I raise it not to in any way suggest that the questioning hasn't been very important, but only to suggest that we have a practice for having a five-minute round. And it is exceeded on some occasions. I've only been here 27 years; I can't remember it being exceeded by about 23 minutes.
And we do have second rounds. And we do have eight -- seven Democrats here. It is now 9:48 -- 10:48. And at the start of this hearing I asked my colleagues among the Republicans to join me here.
I repeat that request now, since it's televised -- internally, at least -- that my colleagues should know that there are seven Democrats here who will all have turns asking questions. And it would be appropriate to have a little balance here, if some Republicans would show up to participate in this hearing. It would be helpful if we had some balance, if some other Republicans would show up to participate in this hearing.
Mr. Comey, I join Senator Schumer in commending you for what you did here. The terrorist surveillance program has been the subject of quite a number of hearings in this committee: strenuous efforts to bring the issue before the Foreign Intelligence Surveillance Court, efforts at changing legislation; some of it is now pending, co- sponsored by Senator Feinstein and myself. The matter is wending its way through the federal courts, and it's the 6th Circuit now.
So this is a very important, substantive matter.
SPECTER: And as the acting attorney general, you were doing exactly what you should do in standing up for your authority and to stand by your guns and to do what you thought was right.
It has some characteristics of the Saturday Night Massacre, when the other officials stood up and they had to be fired in order to find someone who would -- deputy attorney general and others would not fire the special prosecutor. So that was commendable.
When you finally got to the place where the buck doesn't stop, when you got to the president -- as I understand your testimony -- the president told you to do what you thought was right. Is that correct?
COMEY: Yes, sir.
SPECTER: So the president backed you up. And it was necessary to make changes in the terrorist surveillance program to get the requisite certification by the acting attorney general -- that is you?
COMEY: And I may be being overly cautious, but I'm not comfortable confirming what program it was that this related to.
And I should be clear. The direction -- as I said, I met with the president first, the Director Mueller did.
COMEY: And it was Director Mueller who carried to me the president's direction to do what the Department of Justice thinks is right to get this where the department believes it ought to be. And we acted on that direction.
SPECTER: Director Mueller told you to -- the president said to do what you thought was right?
COMEY: Correct.
SPECTER: Well, how about what the president himself told you?
COMEY: I don't want to get into what -- the reason I hesitate, Senator Specter, is the right thing was done here, in part -- in large part because the president let somebody like me and Bob Mueller meet with him alone.
And if I talk about that meeting, I worry that the next president who encounters this is not going to let the next me get close to them to talk about something this important.
So I'm -- I want to be very careful that I don't talk about what the president and I talked about.
I met with the president. We had a full and frank discussion, very informed. He was very focused.
Then Director Mueller met with the president alone. I wasn't there.
Director Mueller carried to me the president's direction that we do what the Department of Justice wanted done to put this on a sound legal footing.
SPECTER: So you met first with the president alone for 15 minutes?
COMEY: Yes, sir.
SPECTER: And then Director Mueller met separately with the president for 15 minutes?
COMEY: I don't remember exactly how long it was. It was about the same length as my meeting. I went down and waited for him, as he...
SPECTER: And then Director Mueller, as you've testified, said to you, the president told Director Mueller to tell you to do what the Department of Justice thought was right?
COMEY: Correct.
SPECTER: Well -- but you won't say whether the president told you to do what the Department of Justice said was right?
COMEY: Yes, I...
SPECTER: You're not slicing hair. There's no hair there.
COMEY: You're a good examiner.
And that...
SPECTER: Well, thank you.
COMEY: Yes. I -- the president and I -- I don't think the conversation was finished. We discussed the matter in some detail. And then I urged him to talk to Bob Mueller about it.
And I don't know the content of Director Mueller's communication with him, except that Director Mueller -- the president didn't give me that -- I can answer that question.
The president didn't give me that direction at the end of our 15 minutes.
SPECTER: He did not?
COMEY: He did not. Instead, he said, "I'll talk to Director Mueller," as I had suggested.
Director Mueller came and met with him, then Director Mueller came to me and said that, "The president told me that the Department of Justice should get this where it wants to be, to do what the department thinks is right."
And I took that mandate and set about to do that, and accomplished that.
SPECTER: I thought you testified, in response to Senator Schumer's questions, that after meeting with the president for 15 minutes, he told you to do what you thought was right.
COMEY: If I did, I misspoke, because that direction came from the president to Director Mueller to me.
SPECTER: Well, when you had the discussions with Chief of Staff Card, what did he say to you by way of trying to pressure you, if, in fact, he did try to pressure you, to give the requisite certification?
COMEY: Again, I'm reluctant to talk about the substance of those kind of deliberative discussions. We discussed...
SPECTER: And I'm not asking about the substance, carefully not. I'm going to, but not yet.
What did he say which constituted what you thought was pressure?
COMEY: I don't know that he tried to pressure me, other than to engage me on the merits and to make clear his strong disagreement with my conclusion.
SPECTER: So then Mr. Card ultimately left it up to you to decide whether to give the certification or not?
COMEY: I don't know that he left it up to me. I had already made a decision and communicated it on that Tuesday, that I was not going to. And it didn't change in the course of my discussions with Mr. Card.
SPECTER: Did not change?
COMEY: Did not change.
SPECTER: Well, he didn't threaten to fire you, did he? I'm going to have to lead the witness now, Mr. Comey.
COMEY: Right.
SPECTER: I'm -- I haven't led you up until now. And now I'm going to have to lead you.
COMEY: That's fine.
SPECTER: He didn't threaten to fire you?
COMEY: No, he didn't.
And Mr. Card, as I said, was very civil to me in our face-to-face meeting. The only time...
SPECTER: Well, you can suggest being fired and be civil about it.
COMEY: Right.
Either civilly or uncivilly, he never suggested that to me.
SPECTER: Attorney General Gonzales could be fired in a civil way. No incivility in suggesting you're going to be replaced as acting attorney general.
Well, all right then. That substance -- I don't want to question you as long as Senator Schumer did, notwithstanding my rights here. But the long and short of it was, he didn't threaten you.
COMEY: No, sir. I didn't feel threatened. Nor did he say anything that I thought could reasonably be read...
SPECTER: And when you talked to White House Counsel Gonzales, did he try to pressure you to reverse your judgment?
COMEY: No.
He disagreed, again, on the merits of the decision. And we had engaged on that, had full discussions about that.
But he never tried to pressure me, other than to convince me that I was wrong.
SPECTER: Well, Mr. Comey, did you have discussions with anybody else in the administration who disagreed with your conclusions?
COMEY: Yes, sir.
SPECTER: Who else?
COMEY: Vice president.
SPECTER: Anybody else?
COMEY: Members of his staff.
SPECTER: Who on his staff?
COMEY: Mr. Addington disagreed with the conclusion. And I'm sure there were others who disagreed, but...
SPECTER: Well, I don't want to know who disagreed. I want to know who told you they disagreed.
COMEY: OK.
SPECTER: Addington?
COMEY: Mr. Addington. The vice president told me that he disagreed. I don't remember any other White House officials telling me they disagreed.
SPECTER: OK. So you've got Card, Gonzales, Vice President Cheney and Addington who told you they disagreed with you.
COMEY: Yes, sir.
SPECTER: Did the vice president threaten you?
COMEY: No, sir.
SPECTER: Did Addington threaten you?
COMEY: No, sir.
SPECTER: So all these people told you they disagreed with you?
Well, why in this context, when they say they disagreed with you and you're standing by your judgment, would you consider resigning? You were acting attorney general. They could fire you if they wanted to. The president could replace you. But why consider resigning?
You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney general, and that was that. Why consider resigning?
COMEY: Not because of the way I was treated but because I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for.
SPECTER: When they said you could find no legal basis for?
COMEY: I had reached a conclusion that I could not certify as...
SPECTER: Well, all right, so you could not certify it, so you did not certify it.
But why resign? You're standing up to those men. You're not going to certify it. You're the acting attorney general. That's that.
COMEY: Well, a key fact is that they went ahead and did it without -- the program was reauthorized without my signature and without the Department of Justice. And so I believed that I couldn't stay...
SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?
COMEY: Yes.
SPECTER: So it went forward illegally.
COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.
SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?
COMEY: I believed so.
SPECTER: Then it was going forward illegally.
COMEY: Well, the only reason I hesitate is that I'm no presidential scholar.
But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law.
And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.
SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal.
The point that I'm trying to determine here is that it was going forward even though it was illegal.
COMEY: And I know I sound like I'm splitting hairs, but...
SPECTER: No, I don't think there's a hair there.
COMEY: Well, something was going forward without the Department of Justice's certification as to its legality. It's a very complicated matter, and I'm not going to go into what the program was or what the dimensions of the program...
SPECTER: Well, you don't have to.
If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?
COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.
There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.
So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality."
And given that, I just -- I couldn't, in good conscience, stay.
SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?
COMEY: Yes, Senator. And I...
SPECTER: Did you make that determination?
COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.
I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.
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