Why Kmiec is wrong

Might as well get the response posted, because I'm sure the original op-ed is going to gleefully show up here soon...

2. Kmiec then attacks Senator Specter for suggesting that the hospital incident has an air of the Saturday Night Massacre about it -- "the comparison to Watergate is wholly inapt," writes Kmiec, because "Watergate involved a real crime."

Well, this case involves a "real crime," too -- systematic violations of a very important federal statute designed to protect Americans from wiretapping by their government, 18 U.S.C. 1809. But that's not really the central point for these purposes, because Specter's obvious reference was simply to the remarkable parallel in that the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. Attorney General Richardson and DAG Ruckelshaus did not resign in October 1973 because they concluded there had been a "burglary for purposes of political dirty tricks," in Kmiec's words. The burglary was an old story. They resigned because the President insisted that they fire prosecutor Archibald Cox when Cox subpoened Nixon's tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales.

What was wrong with the hospital visit

Firedoglake sets it out nicely.

The President sent his men to Ashcroft’s hospital room to make an illegal end run around the Justice Department and its acting Attorney General. Acting AG Comey and the Department’s Office of Legal Counsel — whose interpretations were binding throughout the Executive Branch — had determined and told the White House that the President’s warrantless surveillance program was unlawful. The President and his men knew that continuing the program was unlawful, but instead of obeying the law, they tried to end run the DoJ’s findings.

Having designated Comey as acting AG, the seriously ill Ashcroft had no legal authority to reverse the DoJ’s determination and approve the illegal spying program. The President and his men undoubtedly knew this, but they ignored that legality, too.

Unwilling to obey the law, the President’s apparently ordered Card and Gonzales to extract an illegal signoff on a program DoJ had declared unlawful. If they failed to compel that signoff, they were prepared to continue their unlawful program without it — as they had already done.

They also quote a Washington Post editorial:

IT DOESN'T much matter whether President Bush was the one who phoned Attorney General John D. Ashcroft's hospital room before the Wednesday Night Ambush in 2004. It matters enormously, however, whether the president was willing to have his White House aides try to strong-arm the gravely ill attorney general into overruling the Justice Department's legal views. It matters enormously whether the president, once that mission failed, was willing nonetheless to proceed with a program whose legality had been called into question by the Justice Department.

Gonzales' Harvard Law class speaks out

Or at least, 56 of them do. That's got to be at least 20%, right?

Twenty-five years ago we, like you, graduated from Harvard Law School....

...it has been with dismay that we have watched your cavalier handling of our freedoms time and time again. When it has been important that legal boundaries hold unbridled government power in check, you have instead used pretextual rationales and strained readings to justify an ever-expanding executive authority....

...Your failure to stand for the rule of law, particularly when faced with a President who makes the aggrandized claim of being a unitary executive, takes this country down a dangerous path....

We call on you and the President to relent from this reckless path, and begin to restore respect for the rule of law we all learned to love so many years ago.

"Why I left the Civil Rights Division"

Bob Kengle, Deputy Chief of the Voting Section, gives an inside view of the disintegration of the DoJ.

In short, I lost faith in the institution as it had become. This was not the result of just one individual, such as Brad Schlozman, although he certainly did his share and then some. Rather, it was the result of an institutional sabotage after which I concluded that as a supervisor I no longer could protect line attorneys from political appointees, keep the litigation I supervised focused on the law and the facts, ensure that attorneys place civil rights enforcement ahead of partisanship, or pursue cases based solely on merit.