The Wall Street Journal reported Friday that President Obama has narrowed his list of possible replacements for FBI Director Robert Mueller to two candidates. Senate Republicans probably won't be happy with either of the highly respected choices. Lisa Monaco, the White House's top counterterrorism official, is a Harvard and University of Chicago-educated former prosecutor whose fraud and corruption cases included Enron. The other is James Comey, the former Bush administration deputy attorney general under John Ashcroft. But with his sins of having objected to President Bush's illicit program of NSA domestic surveillance and having selected Patrick Fitzgerald as the Special Counsel in the Plamegate case, Comey would likely hit a brick wall from the GOP.
As the Journal noted, Comey "is best remembered for a high-stakes standoff with his own bosses in the Bush administration." Most Americans are probably unaware of those high-stakes: just months before the 2004 election, Comey and the man he would now replace almost triggered the mass resignation of Justice Department leaders over the NSA's warrantless wiretapping program.
In March 2004, Comey served as the acting attorney general during Ashcroft's recovery from emergency gall bladder surgery. In that capacity, Comey had refused to recertify President Bush's illegal NS domestic surveillance program. On March 10, Gonzales and Bush Chief of Staff Andy Card went behind Comey's back to pressure an "extremely ill and disoriented" Ashcroft. The Washington Post recounted Comey's May 2007 Congressional testimony about the scene as Ashcroft's bedside:
When the White House officials appeared minutes later, Mr. Gonzales began to explain to Mr. Ashcroft why they were there. Mr. Comey said Mr. Ashcroft rose weakly from his hospital bed, but in strong and unequivocal terms, refused to approve the eavesdropping program.As Barton Gellman documented, President Bush was blissfully unaware of the rebellion over his so-called "terrorist surveillance program." The crisis over the re-certification over the NSA eavesdropping effort nearly destroyed his Justice Department just months before the November 2004 elections. As Gellman recounted:
"I was angry,' Mr. Comey told the committee. "I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me. I thought he had conducted himself in a way that demonstrated a strength I had never seen before, but still I thought it was improper."
All hell was breaking loose at Justice. Lawyers streamed back from the suburbs, converging on the fourth-floor conference room. Most of them were not cleared to hear the details, but a decision began to coalesce: If Comey quit, none of them were staying.More below the fold.
Over the objections of Vice President Cheney, Bush ultimately made the changes Comey and Mueller demanded. Of course, the American people didn't learn about the existence of the NSA domestic spying program until December 2005, more than a year after George W. Bush narrowly secured reelection over Democrat John Kerry. Voters would have known sooner, but as the New York Times' Eric Lichtblau later revealed, "For 13 long months, we'd held off on publicizing one of the Bush administration's biggest secrets."
During those years, the Bush administration had another secret. Someone in the White House had revealed the identity of covert CIA operative Valerie Plame. In the fall of 2003, President Bush promised to fire whoever it was. With John Ashcroft having recused himself, it fell to Acting Attorney General James Comey to appoint a Special Counsel. His choice? The U.S. attorney in Chicago and his longtime friend, Patrick Fitzgerald.
While the American Lawyer described Comey and Fitzgerald as "two of a kind," right-wing conspiracy site Newsmax viewed the appointment differently. In October 2005, Newsmax complained in "Patrick Fitzgerald Appointed by Longtime Crony":
Now that the press is convinced that U.S. Attorney Patrick Fitzgerald is about to bring indictments in the Leakgate case, reporters are praising him as an unbiased, objective and independent-minded prosecutor.When Fitzgerald ultimately indicted and convicted Dick Cheney's Chief of Staff Scooter Libby for perjury and obstruction of justice, conservatives were apoplectic. Attacking the Republican appointee Fitzgerald for prosecuting a fellow Republican, conservatives predictably denounced the "criminalization of politics." Tucker Carlson, whose father Richard happened to be one of the members of the Scooter Libby Legal Defense Fund at the time, was furious. He called Fitzgerald "a lunatic" and "disgusting." It's no wonder that Karl Rove in March 2005 initially put Patrick Fitzgerald on the list of "weak U.S. Attorneys who ... chafed against Administration initiatives" in the political purge of U.S. attorneys.
But it turns out - independence had nothing to do with the way Fitzgerald won his appointment as Leakgate special counsel.
According to a May 2003 profile in American Lawyer magazine, Fitzgerald had been "best friends" for 14 years with the man who tapped him - then-Deputy Attorney General James Comey.
In fact, Fitzgerald and Comey were so chummy that the magazine headlined its piece - "The Pat and Jim Show."
But as the New York Times explained in May 2007, Republicans' disdain for James Comey hardly ended with Plamegate or the NSA's lawlessness (about which Alberto Gonzales testified in 2006 "there was no serious disagreement" within the administration):
In 2004, he backed Justice Department subordinates who withdrew a legal memorandum justifying harsh interrogations of suspected terrorists. This spring, more than a year after leaving the government, he publicly praised several United States attorneys who had been dismissed, undermining the administration's claim that they were removed for poor performance.The Times' Scott Shane and David Johnston were surely right when they described Comey as "Loyal to Bush but Big Thorn in Republicans' Side."
For all these reasons, Republicans and their media water carriers would likely open fire on James Comey should President Obama nominate him to run the FBI. But to that list of GOP grievances against the man Obama reportedly considered for the Supreme Court, you can add one more. As Comey explained in his April 2009 defense of the Obama team's national security chops:
"I like and respect Eric Holder a great deal. Just to make sure I never get invited to a Republican Party meeting again I sent a letter of support on his behalf. I happen to think he's a good, honest person."