A Higher Loyalty

by James Comey

  I went back into Ashcroft’s room. By this point, Goldsmith and Philbin had joined me. I sat in an armchair just to the right of Ashcroft’s bed, staring at the left side of his head. He lay with eyes closed. Goldsmith and Philbin stood just behind my chair. I didn’t know it at the time, but Goldsmith had a pen in his hand, taking detailed notes of what he was seeing and hearing. Janet Ashcroft stood on the far side of the bed, holding her semiconscious husband’s right arm. We waited in silence.

  Moments later, the hospital room door opened and Gonzales and Card walked in. Gonzales was holding a manila envelope at his waist. The two men, both among President Bush’s closest confidants, stopped on my side of the bed, by Ashcroft’s left leg. I could have reached out and touched them. I remember thinking I might have to do that if they tried to get Ashcroft to sign something. But that the idea even crossed my mind seemed crazy. I’m really going to wrestle with these men at the attorney general’s bedside?

  Gonzales spoke first, “How are you, General?”

  “Not well,” Ashcroft mumbled to the White House counsel.

  Gonzales then began to explain that he and Card were there at the president’s direction about a vital national security program, that it was essential that the program continue, that they had briefed the leadership of Congress, who understood the program’s value, wanted it continued, and were willing to work with us to fix any legal issues. Then he paused.

  And then John Ashcroft did something that amazed me. He pushed himself up on the bed with his elbows. His tired eyes fixed upon the president’s men, and he gave Card and Gonzales a rapid-fire blast. He had been misled about the scope of the surveillance program, he said. He vented that he had long been denied the legal support he needed by their narrow “read-in” requirements. Then he said he had serious concerns about the legal basis for parts of the program now that he understood it. Spent, he fell back on his pillow, his breathing labored. “But that doesn’t matter now,” he said, “because I’m not the attorney general.” With a finger extended from his shaking left hand, he pointed at me. “There is the attorney general.”

  The room was quiet for several beats. Finally, Gonzales spoke two words. “Be well.”

  Without looking at me, the two men turned toward the door. When their heads were turned, Janet Ashcroft scrunched her face and stuck her tongue out at them.

  About five minutes later, after Card and Gonzales had left the building, Bob Mueller entered the room. He leaned down and spoke to Ashcroft in intensely personal terms—terms that would surprise those who knew the stoic Mueller well.

  “In every man’s life there comes a time when the good Lord tests him,” he told Ashcroft. “You passed your test tonight.” Ashcroft did not reply. As Mueller wrote in his notes that night, he found the attorney general “feeble, barely articulate, clearly stressed.”

  The moment had taken a toll on me. My heart was racing. I was feeling slightly dizzy. But when I heard Bob Mueller’s tender words, I felt like crying. The law had held.

  But neither Gonzales nor Card were finished with me yet. An agent summoned me to the temporary command center the FBI had set up in the next room. Card was on the phone, and the president’s chief of staff, still reeling from his experience with Ashcroft, was pissed. He instructed me to come see him at the White House immediately.

  I was so offended by the effort to manipulate a sick, possibly dying man to subvert the law that I couldn’t hold back any longer. “After the conduct I just witnessed,” I told Card, “I will not meet with you without a witness.”

  He got hotter. “What conduct?” he protested. “We were just there to wish him well.”

  That lie was poison, but I wasn’t going to rise to it. I said again, slowly and calmly, “After the conduct I just witnessed, I will not meet with you without a witness.” And then I added, because it had just occurred to me, “and I intend that witness to be the solicitor general of the United States.”

  “Are you refusing to come to the White House?” Card asked, clearly taken aback.

  “No, sir. I will come as soon as I am able to reach the solicitor general to come with me.” The call ended. I thought of Ted Olson, the solicitor general, for the same reason I earlier thought of Bob Mueller. As with Bob, Ted and I weren’t friends, but I liked and respected him; more important, so did the president and vice president. I needed his stature, his weight with them. I also had no doubt he would see the legal issues as we did, if the vice president would let him in the circle. I reached Olson, who was also out at dinner. He agreed to meet me right away at the Justice Department and to accompany me to the White House.

  Just after 11:00 P.M., as a light rain began to fall, the solicitor general and I rode together in the U.S. Marshals armored car to the White House. We walked up the carpeted stairs to Card’s West Wing office, just steps from the Oval Office, where Card met us outside his door, asking Ted Olson to wait outside while he spoke with me. Card seemed calmer, so my instincts told me not to fight to have Olson in the room.

  Once we were alone, Card began by expressing his hope that people would calm down. He said he had heard “talk about resignations.” I learned later that Jack Goldsmith had asked his deputy, who like most others was not read into the program, to prepare a letter of resignation for him. The deputy alerted a friend at the White House, who apparently had informed Card. The chief of staff could see catastrophe coming in the form of disastrous headlines and an election-year political scandal.

  “I don’t think people should ever threaten to resign to get their way,” I replied. Instead, I said, they should work hard to get something right on the merits. If they can’t get there, and the issue is important enough, then they should quit.

  The door to Card’s office opened. Gonzales walked in. He had seen Olson sitting outside and invited him into Card’s office as well. The four of us sat and quietly reviewed the state of play. We reached no agreement, and they did not explain what they had been doing at Ashcroft’s bedside, but the emotional temperature had dropped. We adjourned.

  * * *

  Years later, I had the chance to hear how my staff experienced that night, when so many of them knew something bad was happening and raced to the hospital, but didn’t know what was actually going on. Chuck Rosenberg, my chief of staff, walked the streets around the hospital but couldn’t find his car. He had jumped out of it and run to the hospital to be with me. In his haste, he forgot to mark where he had parked. He took a cab home to Virginia at 2:30 A.M. Rosenberg didn’t drink alcohol, so his wife was mystified by his inability to find his car. The mystery was only deepened by his explanation that “someday I may be able to tell you.” It was years before she would know the story. Fortunately, he found the family car at first light the next day.

  Deputy Chief of Staff Dawn Burton’s story is my favorite. Around 7:00 P.M., with the boss gone for the night, she had been checking in with other staff members on the fourth-floor hall, trying to recruit a group to go have drinks. After being repeatedly told everyone was too busy, she retreated to her office to continue her own work. A short time later, a colleague burst into her office and said, “Grab your coat and meet us in the garage.” “Yes!” she shouted and hurried to the garage. There, she was bustled into the backseat of a car packed with staff for a harrowing but silent drive to George Washington University Hospital. She ended up pacing with colleagues in the hall down from Ashcroft’s room, with no idea why they were there. She made a last pitch for drinks as the group filed out of the hospital, but nobody had fun that night.

  When I finally arrived home in the early morning hours of Thursday, March 11, the house was dark and quiet. Patrice and the five kids were long asleep. For days, Patrice knew I was struggling with a very hard problem, involving major conflict with the White House. I couldn’t talk to her because any communication about classified topics requires that both parties have the appropriate clearance and a work-related need to know the information. She didn’t have either. That separation
from my family and closest friend added to my stress, as it does to many couples involved in classified work. I was sleeping little and deeply troubled, although she didn’t know what it was about. I went into the kitchen to grab a snack. Patrice had printed out an excerpt from my Senate confirmation hearing—less than six months earlier. As she and the kids sat behind me that day, senators had pressed me on how as deputy attorney general I would handle conflict with the White House. The context for their questions was how I would handle politically controversial investigations, but she had taped part of my answer to the refrigerator door:

  I don’t care about politics. I don’t care about expediency. I don’t care about friendship. I care about doing the right thing. And I would never be part of something that I believe to be fundamentally wrong. I mean, obviously we all make policy judgments where people disagree, but I will do the right thing.

  I awoke only a few hours later to news that terrorists had attacked commuter trains in Madrid during the night. The day was consumed by those terrible attacks and our effort, in conjunction with the CIA and other intelligence agencies, to find out whether there were serious threats of similar plots in our own country. We met early at FBI headquarters, and then Director Mueller and I drove to the Oval Office threat briefing. We met with the president, the vice president, and their senior team. There was no mention of Stellar Wind.

  After the briefing, I stopped Fran Townsend in the hallway. I had known Fran since our days as prosecutors in New York. She was now serving as National Security Adviser Condi Rice’s deputy. Rice had not been at the Tuesday meeting with the vice president. Was it possible the national security adviser wasn’t read into the Stellar Wind program? If she were read in now, I wondered, might she be a voice of reason?

  I told Townsend that I wanted to say a term to her and I needed to know if her boss recognized the term. Fran looked confused, but I pressed on. “Stellar Wind,” I said. “I need to know if she knows that term.” She said she would find out. Later that day, Townsend called me to say her boss knew that term, was fully up to speed, and had nothing to add. I would get no help from Rice.

  Back at Justice, Goldsmith and Philbin confirmed that the White House had gone silent on Stellar Wind. We waited. Late that afternoon, the two came to see me. The president had reauthorized the program despite our warnings. The new order had some significant differences. The line for the attorney general’s signature had been removed and replaced with a line for White House Counsel Al Gonzales. Addington also added language to authorize NSA activity that had not been covered by his earlier drafts of the president’s orders.

  We were done here. I knew this would be my final night in government service. The same for Bob Mueller. Like me, he could not continue to serve in an administration that was going to direct the FBI to participate in activity that had no lawful basis.

  I drafted a resignation letter and went home and told Patrice I was quitting the next day. Again, I had to leave out the particulars of why.

  Friday, March 12, was a somber morning. I was up and gone before breakfast, so I didn’t hear Patrice tell the kids, “Daddy may be getting a new job, but it is all going to be fine.” Bob Mueller and I went through the motions at our usual early-morning terrorism threat session at FBI headquarters, then we drove together to the White House for the regular Oval Office threat briefing. We both stood silently looking out the window at the Rose Garden as we waited for the door by the grandfather clock to open so we could join the president’s morning briefing. I was trying to memorize a view I would never see again. The door opened.

  The meeting felt surreal. We talked about Madrid and Al Qaeda and everything other than the collision that was threatening to topple the administration. Then we got up and headed for the door. Mueller was ahead of me. I was just rounding the end of the couch, steps from the door, when I heard the president’s voice.

  “Jim,” the president said, “can I talk to you for a minute?”

  I turned back and President Bush led me across the Oval Office, down a short hall, and into the president’s private dining room. We sat at a table with one chair on each of four sides; the president sat with his back to the windows and I took the chair nearest the door.

  “You don’t look well,” the president began, adding, with typical bluntness, “We don’t need anybody else dropping.” One of my colleagues from another agency had fainted when leaving the West Wing a day or so earlier.

  “I haven’t been sleeping much,” I confessed. “I feel a tremendous burden.”

  “Let me lift that burden from your shoulders,” the president said.

  “I wish you could, Mr. President. But you can’t. I feel like I’m standing in the middle of railroad tracks. A train is coming that is going to run over me and my career, but I can’t get off the tracks.”

  “Why?”

  “Because we simply can’t find a reasonable argument to support parts of the Stellar Wind program.”

  We then discussed the details of the program and the problematic parts. I finished by saying, “We just can’t certify to its legality.”

  “But I say what the law is for the executive branch,” he replied.

  “You do, sir. But only I can say what the Justice Department can certify as lawful. And we can’t here. We have done our best, but as Martin Luther said, ‘Here I stand. I can do no other.’”

  “I just wish you hadn’t sprung these objections on us at the last minute.”

  I was shocked. “If that’s what you were told, Mr. President, you’ve been badly misled by your staff. We have been telling them about this for weeks.”

  He paused, as if digesting that revelation. “Can you just give me until May 6 so I can try to get a legislative fix? This program is really important. If I can’t get it, I will shut it down.”

  “We can’t do that, Mr. President. And we’ve been saying that for weeks.”

  I paused, took a breath, and then overstepped my role as a lawyer to offer policy advice to the president. “And Mr. President, I feel like I should say something else. The American people are going to freak when they find out what we have been doing.”

  He seemed irritated for the first time. “Let me worry about that,” he said sharply.

  “Yes, sir. But I thought it had to be said.”

  He paused, and I knew our conversation was coming to an end. As I had told his chief of staff Wednesday night, I didn’t believe in threatening resignation to win an argument. I thought the argument should be fought on the merits, and then people could decide whether to quit after the decision. It always felt like cheating to say you would take your ball and go home if you didn’t get your way.

  Still, I wanted to find a way to help Bush. This man, whom I liked and wanted to see succeed, appeared not to realize the storm that was coming. The entire Justice Department leadership was going to quit, and just as he was running for reelection. An uprising of that sort hadn’t even happened during the worst days of Watergate. I had to tell him, to warn him, but I didn’t want to break my rule. So I clumsily tried another approach.

  “You should know that Bob Mueller is going to resign this morning,” I said.

  He paused again. “Thank you for telling me that.” He extended his hand and showed me back to and across the Oval Office. I walked out past the clock and went immediately downstairs, where Bob Mueller stood waiting for me in the West Wing lower level. I had just started to describe my conversation with the president when a Secret Service agent approached to say that the president wanted to see Mueller upstairs, immediately.

  Bob came down about ten minutes later. We went out to his armored Suburban and climbed in the back. He asked his driver to step out. (The driver later told me that he knew something was up because it was the first time in a decade of driving that he had been asked to step out.) He told me he and the president had covered much of the same ground. Bob confirmed to him that he could not stay as director under these circumstances and implored the president to listen t
o us. The president replied with a directive: “Tell Jim to do what needs to be done to get this to a place where Justice is comfortable.”

  That was all we needed, an order from the president. That took us around the vice president, Card, and Gonzales, and even around Addington and his safe full of secret orders. We headed back to the Justice Department, where we briefed our senior staff. Our first task was to get more good lawyers read in. Ted Olson was preparing for a Supreme Court argument, so his deputy, Paul Clement, was added to the team, as were more of those brilliant monks from the Office of Legal Counsel. CIA and NSA lawyers joined the team. Addington couldn’t stop us from making the circle bigger.

  The team worked all weekend to shape a new draft presidential order that narrowed the scope of the NSA’s authority. I decided to send a classified memo to the White House summarizing the problems and our recommended fixes. That would make it a presidential record forever and answer in a formal way the president’s direction to Mueller; this memo documented what needed to be done for Justice to be comfortable. It was a bit of a jerk move, because it created a permanent and complete record of all the ways they had been out of bounds, but the time to be a bit of a jerk was now. Goldsmith and Philbin hand-delivered the memo to Gonzales at home late Sunday night. It really pissed off some people at the White House.

  On Tuesday, Gonzales called me to say a memo would be coming back to us from the White House. He asked me not to overreact and said the White House was committed to working with us. I don’t know whether I overreacted, but I sure reacted, and very strongly. The memo was a big middle finger, clearly written by Addington. It said we were wrong about everything, and acting inappropriately by usurping presidential authority. It rejected all our proposed changes, saying they were unnecessary legally and factually. It said nothing about our mothers being whores, but it might as well have.

  I pulled out my resignation letter and changed the date to March 16. Screw these people. They had just gone back on the president’s directive to Bob Mueller and were leaving in place an unlawful order. I told Ashcroft’s chief of staff that I was resigning, again. He asked me to wait. He was sure Ashcroft would want to quit with the rest of us, but he was still too ill. Could we give him a few days to get stronger? Of course. I put the letter back in my drawer.