TheSequitur.com Editorial Board
May 21, 2007

Which is more important to American leaders, the nation’s founding charter or its national pastime? The answer to this question is significant and unfortunately not obvious, but more on that in a moment.

It was a dark and stormy night, or it should have been.

With emergency lights flashing and sirens blaring, James B. Comey, a middle-aged government employee, races to George Washington University Hospital to interrupt a secret March meeting aside an ailing man’s bed; he hopes to avert a constitutional crisis.

Was he too late?

As noted by other commentators, the above reads like an admittedly poor suspense novel. But as usual, with the Bush administration facts are scarier than fiction.

In March 2004, Comey, the No. 2 official in the U.S. Justice Department, was the acting attorney general while an incapacitated John Ashcroft was undergoing gallbladder surgery at George Washington University Hospital.  The not-so-do-gooders - in this tale - were none other than then-White House counsel Alberto Gonzalez and then-White House Chief of Staff Andrew Card.  

The two wanted a disoriented Ashcroft to sign off a presidential order reauthorizing a secret (and likely illegal) eavesdropping program that monitored, well, we’re not really sure. Comey, following the legal advice of Justice Department officials that found it did not comply with federal law, had refused to give his consent.

So, Gonzalez and Card tried to go over Comey’s head - to Ashcroft. But the bedridden and technically powerless Ashcroft stood firm, articulating his opposition to the indescribable (Read: still-classified) program and directing the dubious duo to Comey. Rather than face Comey, the two White House officials instead stormed from the room.

Later, however, when Ashcroft, Comey, FBI Director Robert Mueller and others threatened “mass resignations” over the matter, Bush capitulated to the Justice Department demands, and the eavesdropping program continued with the department’s blessings – but not the courts’.

The program was altered to become the “wiretapping” program later detailed by the New York Times, which exposed that the international communications of U.S. citizens with suspected ties to terrorism were being monitored without warrants and in likely violation of federal law.

As others have observed, the real question now is just how the program functioned before Gonzalez and Card failed to browbeat John Ashcroft, whom we severely underestimated as merely a Bible-thumping Bushie, into scrawling his John Hancock.

It must have been pretty bad.  

Comey recounted the hospital rendezvous during Senate hearings last week as Congress continued its probe of the new U.S. attorney general – drum roll, please – Alberto Gonzalez. Inevitably, legislators must hold still more hearings, this time on Gonzalez’s actions as the attorney for the White House.

If Gonzalez is as forthcoming in these future hearings as he was during those concerning the firing of eight U.S. attorneys - when he uttered the phrase “I don’t know” or its variants 64 times - then Congress must hold him accountable and find him in contempt.

Congress has the implied power – the U.S. Supreme Court declared nearly 200 years ago – to find individuals to be in criminal contempt for refusing to testify, resulting in possible fines and imprisonment.

And testifying under oath with the intent to mislead or obfuscate under the guise of faulty memories and busy calendar schedules is tantamount to not testifying at all – or lying.

Congress has liberally used contempt threats in the past against executive officers like former Sectary of State Henry Kissinger and former Attorney General Janet Reno. The nearly unanimous result has been a greater disclosure of documents and information than their respective administrations had been unwilling until then to disclose.

Which brings us back to baseball.

Two years ago, the then-chairman of the House Government Reform Committee, Virginia Republican Tom Davis, threatened criminal contempt charges during a congressional investigation into steroid use in Major League Baseball should players refuse to comply with committee subpoenas.

If Congress is willing to consider contempt charges against (so-called) athletes, surely it should consider the same when confronted with clear abuses of executive authority, i.e. spying on Americans without a court’s blessing.

We would rather see asterisks on the back of baseball cards than on the U.S. Constitution.
[Washington Post, NYTimes, Senate.gov, Photo - Washington Post]