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Angler: The Cheney Vice Presidency

Excerpt Endnotes: Cheney Shielded Bush From Crisis

The following source notes are adapted from the endnotes to Chapter 12 of Angler: The Cheney Vice Presidency (Penguin Press, 2008):

Even now, three months into a legal rebellion at the Justice Department, President Bush was nowhere in the picture.

[1] Bush, even now, was nowhere in the picture: From the President's Daily Schedule, Mar. 10, 2004: 12:15 p.m., President Discusses Jobs & Trade at Women's Entrepreneurship Forum, Cleveland Convention Center, Cleveland, Ohio.

With a nod from Cheney, Hayden walked through the program's vital mission.

[2] With a nod from Cheney: The account of this meeting is from interviews with two participants, and with two others with subsequent knowledge of what transpired. It also draws, as noted below, on the Senate testimony of Alberto Gonzales. Until this day, Cheney had briefed only the Intelligence chairmen and vice chairmen and-once, when the program needed secret funds-the chairman and ranking member of the Senate Defense Appropriations Subcommittee.
Speaker of the House Dennis Hastert, Senate Majority Leader Bill Frist, and Senate Minority Leader Tom Daschle had never heard of the program before. House Minority Leader Nancy Pelosi knew about it because she served previously as the ranking Democrat on the Intelligence Committee. The full list of congressional briefings is in a letter from John Negroponte to Dennis Hastert, May 17, 2006.

More than three years later, Gonzales would testify that there was "consensus in the room" from the lawmakers, "who said, 'Despite the recommendation of the deputy attorney general, go forward with these very important intelligence activities.'"

[3] "'Despite the recommendation of the deputy attorney general'": Testimony of Alberto Gonzales, Senate Judiciary Committee, July 24, 2007.

According to two officials who saw the FBI logs, it was the president was on the line.

[4] According to two officials: Interviews with two U.S. government sources. For reasons that remain unclear, the White House has never acknowledged that the call came from Bush. At a Senate hearing, Gonzales made heroic efforts to dodge the question:

SEN. SCHUMER: Okay. Let me ask you this. Who sent you to the hospital?
ATTY. GEN. GONZALES: Senator, what I can say is we'd had a very important meeting at the White House over one of the most—
SEN. SCHUMER: I didn't ask that. I didn't ask for . . .
ATTY. GEN. GONZALES: I'm answering your question, Senator
SEN. SCHUMER: Who sent you? . . .
ATTY. GEN. GONZALES: It was one of the most important programs for the United States. It was important-it had been authorized by the president. I'll just say that the chief of staff of the president of the United States and the counsel of the president of the United States went to the hospital on behalf of the president of the United States.
SEN. SCHUMER: Did the president ask you to go?
ATTY. GEN. GONZALES: We were there on behalf of the president of the United States.
SEN. SCHUMER: I didn't ask you that. . . . Did the president ask you to go?
ATTY. GEN. GONZALES: Senator, we were there on behalf of the president of the United States.
SEN. SCHUMER: Why can't you answer that question?
ATTY. GEN. GONZALES: That's the answer that I can give you, Senator. . . .
SEN. SCHUMER: Did the vice president send you?
ATTY. GEN. GONZALES: Again, Senator, we were there on behalf of the president.

Testimony of Alberto Gonzales, Senate Judiciary Committee, July 24, 2007.

A Senate hearing in 2007 described some of what happened next. But much of the story has remained untold until now.

[5] A senate hearing in 2007: The hospital visit was first disclosed in Eric Lichtblau and James Risen, "Justice Deputy Resisted Parts of Spy Program," New York Times, Jan. 1, 2006. In the summer and fall of 2007, Comey, Goldsmith and Gonzales gave riveting testimony about the visit.

The showdown with the vice president, the day before, had been excruciating, the pressure "so great it could crush you like a grape," Comey said.

[6] The showdown with the vice president: Comey interview, May 19, 2008.

Ashcroft told the president's men he never should have certified the program in the first place.

[7] Ashcroft said he never should have certified the program: Contemporary notes from Mueller, the FBI director, made cryptic reference to Ashcroft's complaint that he was "barred from obtaining the advice he needed by the strict compartmentalization rules of the WH." See "RSM Program Log," Aug. 14, 2007. The meaning of that line was much debated in commentary when the log was released. The FBI declined to elaborate. According to Comey, who gave a more detailed description of the exchange in an interview, Ashcroft specified a list of facts, and a list of legal concerns, that the secrecy rules had prevented him from discovering. Had he known them, he said, he would have withheld his signature before.

"I knew zilch about what the matter was, but I did know that lots of senior DOJ folks were on the verge of resigning," Whelan said in an e-mail.

[8] "I knew zilch": E-mail from Ed Whelan to author, May 5, 2008.

"I don't think people should try to get their way by threatening resignations," Comey replied.

[9] "I don't think people should try": Comey interview, May 16, 2008.

Trouble was spreading. The FBI general counsel, Valerie E. Caproni, and her CIA counterpart, Scott W. Mueller, told colleagues they would leave if the president reauthorized the program over Justice Department objections.

[10] Trouble was still spreading: Interviews with three officials with firsthand knowledge of what Caproni and Muller said, 2008.

James A. Baker, the counselor for intelligence, thought hard about jumping, too.

[11] James A. Baker, the counselor for intelligence: Baker gave the author a brief interview, but would not discuss his dispute with the White House or any aspect of the program and its relationship to the FISA court, on or off the record. This account comes from other officials familiar with his work, and also benefits from stories by the best- sourced reporter covering the surveillance court. See Carol D. Leonnig, "Secret Court's Judges Were Warned About NSA Spy Data; Program May Have Led Improperly to Warrants," Washington Post, Feb. 9, 2006.

"I was determined to stay there and fight for what I thought was right," Baker said in an interview.

[12] "I was determined to stay there and fight": Interview with James A. Baker, May 13, 2008.

Bush gave a speech to evangelicals that morning and left the White House for an after-lunch fundraiser in New York.

[13] Bush gave a speech to evangelicals: From the president's published schedule:
10:42 a.m. Remarks Via Satellite by the President to the National Association of Evangelicals Convention, the Map Room.
11:51 a.m. President Makes Remarks Condemning the Madrid Bombings.
1:32 p.m. Remarks by the President in a Conversation on the Economy, USA Industries, Bay Shore, New York.
6:15 p.m. Remarks by the President at Bush- Cheney 2004 Reception, the Carltun East Meadow, New York City.

"My job was to communicate with the president about the peripheral vision, not just the tunnel vision of the moment," Card said, deflecting questions on the details.

[14] "My job was to communicate": Card interview, May 4, 2008.

It has been widely reported that Bush executed the March 11 order with a blank space over the attorney general's signature line. That is not correct.

[15] It has been widely reported: Even the legal correspondent who co-authored pathbreaking stories on the NSA program for the New York Times reported that the "line for the attorney general's signature remained blank." See Eric Lichtblau, Bush's Law: The Remaking of American Justice (New York: Pantheon, 2008). That report may have originated with a misreading of Comey's remark, in his 2007 Senate testimony, that "the program was reauthorized without us, without a signature from the Department of Justice attesting as to its legality."

Only Richard M. Nixon, in an interview after leaving the White House in disgrace, claimed authority so nearly unlimited.

[16] Only Richard M. Nixon: Nearly three years after leaving office, Nixon said, "When the president does it, that means that it is not illegal." Interview with David Frost, May 19, 1977. One scholar described that as "the apogee of presidential arrogance." Even so, Nixon is not known to have signed a formal directive that went nearly so far while in office. Nixon's warrantless wiretapping of antiwar activists, to which he referred in his remark, formed the basis of one of the articles of impeachment voted against him. See David D. Cole, "Reviving the Nixon Doctrine: NSA Spying, the Commander- in- Chief, and Executive Power in the War on Terror," Washington and Lee Journal of Civil Rights and Social Justice 13 (2006).

"Over the last two weeks ...I and the Department of Justice have been asked to be part of something that is fundamentally wrong," Comey wrote.

[17] Over the last two weeks: Unsent resignation letter, dated March 16, 2004, on file with author. This version is identical to the one Comey drafted on March 11, except for the addition of a sentence referring to a meeting on March 12 (described below). The added sentence says: "I would give much not to be in this position. But, as I told you during our private meeting last week, here I stand; I can do no other."

David Ayres, Ashcroft's chief of staff, pleaded with Comey to wait a few days.

[18] David Ayres, Ashcroft's chief of staff: Comey testimony, 2007.

"It was a compartmented issue," Rice recalled in an interview.

[19] "It was a compartmented issue," Rice recalled: Interview with Condoleezza Rice at the State Department, May 20, 2008.

He had nearly reached the grandfather clock at the door, two witnesses said, when the president said, "Jim, can I talk to you for a minute?"

[20] He had nearly reached the grandfather clock: The Oval Office briefing and Bush's comment at the end were described by two participants.

"You don't look well," Bush began. Oldest trick in the book. Establish dominance, put the other guy off his game.

[21]"You don't look well": Quotations from the Bush-Comey conversation are taken verbatim from unclassified notes describing Comey's report of the meeting shortly afterward. Two other depictions of the meeting, one from an aide to Bush, the other from an associate of Comey, were similar but less detailed. Comey's email, below, immediately after the meeting, offers contemporaneous support for these accounts.

"The president just took me into his private office for a 15 minute one on one talk," he wrote.

[22] The president just took me: Contents of Comey's e-mail were provided verbatim by an official who retained a copy. The reference to 5/6 is the date, May 6, 2004.

This was a rule-of-law question, he told the president, and the answer was in the Department of Justice.

[23] This was a rule- of- law question: Interview with a confidant of Mueller's who had contemporary knowledge of the exchange with Bush.

Long after departing as chief of staff, Card held fast to the proposition that whatever happened was nobody's business, and no big deal anyway.

[24] Long after departing as chief of staff: Card interview, May 4, 2008. In the interview, Card said, "To me, this is the executive branch doing what they have to do under Article Two of the Constitution, and you're not Article Two." This was a recitation of Cheney's constitutional view, but Card did not sound as though he had pondered it at length. His next words were "You're Article One." Article One established Congress. Presumably Card referred to the First Amendment. When the author replied that he would place himself, with other members of the public, in the Preamble ("We the People"), Card replied, "I don't know anybody who's claimed the public is part of Article Two."

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