CQ Transcripts Wire
Tuesday, May 15, 2007; 1:59 PM

Read Part 3

SPECTER: OK. Then it wasn't illegal.

COMEY: That's why I hesitated when you used the word "illegal."

SPECTER: Well, well, OK.

Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal.

It's not illegal to violate custom, is it?

COMEY: Not so far as I'm aware.

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was.

The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK.

Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.

COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.

I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.

SPECTER: OK.

I will not ask you -- I have a rule never to ask the same question more than four times...

(LAUGHTER)

... so I will not ask you again whether necessarily from your testimony the conclusion is that what the president did was legal -- not illegal.

Let me move on. I only have 35 minutes left.

(LAUGHTER)

How long did you continue to serve as deputy attorney general after this incident?

COMEY: Until August of 2005, so almost a year and a half, 16 months.

SPECTER: And during the course of that continued service, you got along OK with the president and the vice president and Card and Addington and all the rest of those fellows in the White House?

COMEY: I think so. I mean, we didn't have much contact with them other than professional matters. But I think so.

SPECTER: But they weren't out to get you because you stood out to them?

COMEY: I hope not. I don't have any reason to believe...

SPECTER: Well, never mind hoping. They didn't do anything to be out to get you or to make your life uncomfortable, or make it difficult for you to perform your duties as deputy attorney general?

COMEY: No.

SPECTER: There was some speculation that -- well, I'll eliminate the word "speculation."

Did you have any sense that you were not considered to be permanent attorney general on Mr. Ashcroft's departure because of your having stood up to the White House on this issue?

COMEY: No.

And I don't have any reason to believe I was ever considered. But I certainly have no reason to believe that there was any connection between consideration of who would be the next attorney general and this matter.

SPECTER: Well, on this issue, Mr. Comey, I commend you again. You did exactly the right thing.

SPECTER: And I think the president did the right thing. In effect, he overruled Card and he overruled Vice President Cheney and he overruled Addington and he overruled Gonzales. And when it came to him -- came to the president's desk where the buck stops he said to Mueller to tell you, "Follow your conscience. Do the right thing." And that was that.

Mr. Comey, it's my hope that we will have a closed session with you to pursue the substance of this matter further. Because your standing up to them is very important, but it's also very important what you found on the legal issue on this unnamed subject, which I infer was the terrorist surveillance program. And you're not going to comment about it. I think you could.

I think you could even tell us what the legalisms were. Doesn't involve a matter of your advice or what the president told you, et cetera.

But I'm going to discuss it with Senator Leahy later and see about pursuing that question to try to find out about it.

Now, Mr. Comey, on to the subject of the hearing. You have been reported as commenting on a number of U.S. attorneys who were asked to resign. You thought they were doing a good job. One was U.S. Attorney David (sic) Bogden of Nevada.

What judgment did you -- do you have as to his capabilities as U.S. attorney?

COMEY: Dan Bogden was an excellent U.S. attorney. He was a career guy who had become U.S. attorney, and I thought very highly of him.

SPECTER: Do you have any insights as to why he was asked to resign?

COMEY: I don't. I've read things in the paper, but I certainly have no personal knowledge of why he was asked to resign. When I left in August of 2005, I couldn't have thought of a reason why he should be asked to resign.

SPECTER: And as to John McKay, do you have a judgment as to the quality, the competency of his performance?

COMEY: Yes. Again, it was excellent in my experience. I had worked with him, as with the others, as a peer when I was U.S. attorney in Manhattan and then as the deputy attorney general. So I had a very positive sense of John McKay.

SPECTER: And as to Paul Charlton, Arizona U.S. attorney, what is your view as to his competence?

COMEY: The same. I don't want to make it sound like I love everybody, but I did like him a great deal.

(LAUGHTER)

He was very strong.

SPECTER: Well, since you don't want to sound like you love everybody, anybody you didn't love who you thought should have been replaced?

(LAUGHTER)

SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN: Outside of members of the committee.

COMEY: There was one U.S. attorney...

(CROSSTALK)

SPECTER: I'd like to ask you about that now that Senator Leahy has opened the door. Which members of the committee don't you love?

(LAUGHTER)

COMEY: You're asking Senator Leahy, I hope.

SPECTER: Start with the chairman.

(LAUGHTER)

LEAHY: Careful. We may be bringing (ph) the clock back again.

SPECTER: What you think of Charlton?

COMEY: Very strong, very strong U.S. attorney.

SPECTER: And David Iglesias, U.S. attorney for New Mexico?

COMEY: Same thing. I had dealt with him quite a bit, both as a peer and as his supervisor, and had a high opinion of him. I thought he did a very good job.

SPECTER: What did you make of Kyle Sampson's testimony that he had recommended calling for the resignation of Peter Fitzgerald?

COMEY: Of Patrick Fitzgerald.

SPECTER: Patrick Fitzgerald. Peter Fitzgerald was the senator.

(UNKNOWN): No relation.

SPECTER: No relation.

COMEY: I only know about that what I read in the newspaper. I was surprised by it, would be a fair description.

SPECTER: And what did you think of the competency of Kyle Sampson?

COMEY: I thought Kyle was very smart. My dealings with him had always been pleasant. He seemed to work very, very hard.

SPECTER: What did you think of the competency or smarts of Kyle Sampson after you heard he wanted to ask for the resignation of Patrick Fitzgerald?

COMEY: Well, I don't think that was an exercise of good judgment, if it's something he really meant. It...

SPECTER: Can you give us an illustration of an exercise in good judgment by Kyle Sampson?

I withdraw that question.

Can you give us an example of an exercise of good judgment by Alberto Gonzales?

Let the record show a very long pause.

COMEY: It's hard -- I mean, I'm sure there are examples. I'll think of some.

I mean, it's hard when you look back. We worked together for eight months.

SPECTER: That's a famous statement of President Eisenhower about Vice President Nixon: "Say something good." "Give me two weeks."

COMEY: Right.

I -- in my experience with Attorney General Gonzales, he was smart and engaged. And I had no reason to question his judgment during our time together at the Department of Justice.

We had a good working relationship. He seemed to get issues. I would make a recommendation to him. He would discuss it with me and make a decision.

As I sit here today, I'll probably five minutes from now think of an example. But I did not have reason to question his judgment as attorney general.

SPECTER: Are you sufficiently familiar with what happened in the issue of the U.S. attorneys resignations to give an evaluation of Attorney General Gonzales' statement that he was no involved in discussions or deliberations, in the context of being contradicted by three of his top deputies and the documentary evidence on the e-mails?

COMEY: I am probably more versed in this than the average person, because I've read what's in the newspaper and looked at some of the documents online.

But I gather he's corrected that statement that he originally made about not being involved in deliberations or discussions.

But I'm not -- I don't know the facts as well as members of this committee, and haven't studied it. So I don't think I have a...

SPECTER: No, I don't think he has corrected that. I think he continues to say that he was involved in a -- his words are "limited" -- quote, "limited," unquote.

SPECTER: That's what he has said.

I think that -- and I've said this to Mr. Gonzales privately and publicly -- that if he would tell us what the reasons were for asking these U.S. attorneys to resign, that it would shed considerable light on what's going on here, on how the program got started, and what the aims of the program were, and what his involvement was.

That can -- that can all be -- this proceeding is still in midstream. He can recant all of what he's said and come forward.

Well, Mr. Chairman, I'm going to yield the balance of my minutes. Thank you.

SCHUMER: Thank you, Mr. Chairman. And you went about, I think, a minute more than I did.

SPECTER: Oh, no I didn't. I'm at 21:35.

SCHUMER: OK. I just...

LEAHY: So we can get on to others, I'm also -- as a member of this committee, let me just go back to the time. I'm not going to use a great deal of time so that...

SPECTER: Senator Schumer and I didn't either, Senator Leahy.

LEAHY: ... so that -- God love you -- so that others here can.

Just one question comes to mind.

Senator Specter spoke to you about legal or illegal. Did it comply with the FISA law?

COMEY: If I -- I've tried, Senator, not to confirm that I'm talking about any particular program. I just don't feel comfortable in an open forum...

LEAHY: OK.

Then on that -- with that answer, I think I agree with -- if I could have Senator Specter's attention just for a moment. With that answer -- and I can understand. I'm well aware of the program, well aware of what happened. And I can understand your reluctance -- very appropriately, your reluctance to answer that specifically.

We will have a closed-door hearing on this. Senator Specter and I are about to have a briefing on aspects of this.

LEAHY: I am very, very troubled by what the Department of Justice is going today -- not on your watch, Mr. Comey, but they're doing today. We have several members of the Intelligence Committee on this committee on both sides. And they will also be looking at it.

Mr. Comey, I have a lot of respect for you. I have less and less respect for the way the Department of Justice is being handled today. This is a dysfunctional Department of Justice. It is being run like a political arm of the White House. That is highly inappropriate.

I've been here for 32 years. I've seen good attorneys general and poor attorneys general. I have always thought that there would at least be the understanding that the professionals in the Department of Justice have to be allowed to do a professional job. And when I see them being overridden time and time again.

Now, I realize there are some things you cannot go into in this session. But you know and I know that there is the overriding of the professional judgment of good men and women in that department to do things that are not proper. And I think this is wrong.

One of my first experiences in the Department of Justice was as a young law clerk working while a student at Georgetown here meeting with the then-attorney general. The then-attorney general was a close to the president as anyone could. He was his brother. This was Attorney General Robert Kennedy.

But I remember what he said to several of the students who were there, because he was hoping we were a cadre, because of our grades and whatnot, he wanted to recruit for the Department of Justice. And he emphasized over and over again on significant matters -- civil rights, criminal, (inaudible) areas and whatnot -- that neither the White House nor his brother would be allowed to influence the professional judgment.

That always stuck in my mind.

LEAHY: And I've seen that happen over and over again. We saw it with Elliot Richardson and Archibald Cox. We saw it with you.

And I am very, very frustrated. I won't go into further questions, because the questions I do want to ask you will be in closed session.

But I hope -- I hope somebody will wake up at the White House at the terrible, terrible precedent they are starting and have started. And I hope whoever the next president is will make a solemn vow never, never, never to allow this politicization of the Department of Justice. Because it hurts every one of us.

It's not the secretary of justice. It's not a member of the president's staff that should be running that. It is the attorney general of the United States. And this attorney general is doing an abysmal job.

SCHUMER: Thank you, Mr. Chairman.

Senator Kohl?

Senator Feinstein was next. I apologize.

FEINSTEIN: Thank you very much, Mr. Chairman.

And thank you very much, Mr. Comey.

I read the transcript of your testimony before the House. And it's clear that you're a very straight shooter and very well respected. And I, for one, really appreciate your point of view.

If I can, I'd like to go back to the event in the hospital room for just a minute. You felt -- and you were presented with something that you had to sign to certify a certain program. That program was initially done outside of the existing law, which is the Foreign Intelligence Surveillance Act, which provides -- which says it's the exclusive authority for all electronic surveillance.

The president used his Article II powers. He said he used the authorization to use military force as the definitive basis for his action, to essentially move outside the law.

However, you were faced -- and the president said when this all came to light that he asked the program -- asked that the program be authorized every 45 days, or certified by the attorney general.

What did you actually have to sign to certify it? What were you confronted with?

COMEY: Senator, I want to be careful in this forum, again, that I'm not confirming the existence of any particular program or that this dispute...

FEINSTEIN: I'm not asking you to. I'm asking you, what piece of paper did you have to sign?

COMEY: It was a signature line on a presidential order.

FEINSTEIN: OK. All right.

And you said that the program was later changed so that it could be signed. But it went ahead at that time without your certification on it.

COMEY: Yes.

FEINSTEIN: And what was the elapsed period of time from that meeting, the denial of DOJ to certify the program and the time when it was essentially certified?

COMEY: It was reauthorized on Thursday, March the 11th, without the department's -- without my signature, without the department's approval.

And it was the next day -- so less than 24 hours later -- that we received the direction from the president to make it right.

And then we set about -- I don't remember exactly how long it was -- over the next few weeks making changes so that it accorded with our judgment about what could be certified as to legality.

And so it was really only that period from Thursday, when it was reauthorized, until I got the direction from the president the next day that it operated outside the Department of Justice's approval.

FEINSTEIN: For approximately two weeks?

COMEY: I don't remember exactly. It was two or three weeks I think that it took us to get the analysis done and make the changes that needed to be made.

FEINSTEIN: And then who signed for DOJ?

COMEY: It was either the attorney general, Ashcroft, or myself who signed. I may have signed that first one after the hospital incident.

FEINSTEIN: OK.

And you then became satisfied that the program conformed with what, essentially?

COMEY: That it was operated consistently with the Office of Legal Counsel's judgment about what was lawful. So we were in a position -- given OLC's opinion, the attorney general and I were in a position to certify the program as to its legality.

FEINSTEIN: Mr. Chairman, it would be very interesting if we could obtain those legal opinions. Because the program we're talking about was originally done outside of law. The executive order of the president was really the prevailing authority.

But even so, I'm a little puzzled because the program was changed. And I'd be very interested in what the legal advise on that program was if that would be possible for us to request.

SCHUMER: I'm sure if the senator makes the request we can make it part of the record.

FEINSTEIN: Fine, I've made that request...

(CROSSTALK)

SCHUMER: I think to the Office of Legal Counsel, which had already stated its opinion on this particular issue.

(CROSSTALK)

FEINSTEIN: Thank you. Thank you.

If I can, I'd like to move on to the United States attorneys.

To the best of your knowledge, has there been any time in the history of our country when as many U.S. attorneys have been fired at one time?

COMEY: The only other incident I know of was during the change of administrations from Bush I to President Clinton's administration.

FEINSTEIN: Which is fairly typical...

(CROSSTALK)

COMEY: Right, it was a change out...

(CROSSTALK)

FEINSTEIN: With a change. But I'm talking during the term of a president has there been any time when a number of U.S. attorneys had been selected and summarily fired without cause?

COMEY: I'm not aware of a similar-size removal of U.S. attorneys.

FEINSTEIN: Thank you very much.

As you know, we've had the EARS reports. Are you familiar with those reports?

COMEY: Yes.

FEINSTEIN: And they have described the performance of U.S. attorneys -- and I gather there's a panel of people that go in and put these reports together. They have subsequently been -- we've been told that they're very, very perfunctory.

Are they, in fact, a document that's utilized within DOJ?

COMEY: Oh, yes.

(LAUGHTER)

And they're not perfunctory. They come -- big team of people.

When I was U.S. attorney in New York, I think 30 or more people came from all over the country -- experienced people, civil lawyers and prosecutors -- and they basically live with you in your office for a couple of weeks and go stem to stern, inspect the whole place. There's an out-briefing.

It's very much like an audit by a big accounting firm, except they audit not just your numbers, but your conduct of cases and your priorities. So it's from top to bottom, and then they issue a detailed report.

FEINSTEIN: Well, let me ask you this question: How then could they be fired for performance reasons if at least seven -- excuse me -- six out of the seven terminated on December 7th had excellent EARS reports?

COMEY: I don't know. I was not aware at the time I left, in August of 2005, of performance-related issues with most of these U.S. attorneys.

Read Part 5