My Bit Role in Ashcroft Hospital Saga

“You might have just saved this presidency”

Over the past three decades, beginning with my role as a Senate Judiciary Committee lawyer for Orrin Hatch, I would guess that I have written well over half a million words about judicial nominees. Yet a single short BlackBerry message that I sent late on a frenzied evening in March 2004 might well have had vastly more impact than all those words and all the hours of research that underlay them.

* * *

As the 2003 year was ending, I realized that it was time for me to look for a new position. I had served as principal deputy in the Department of Justice’s Office of Legal Counsel for just over two years. When my first boss, Assistant Attorney General Jay Bybee, was appointed to the Ninth Circuit, I interviewed to replace him, but I was passed over—understandably so, not least because I had not worked on the post-9/11 national-security matters that were the Administration’s highest priority.

When the new AAG, law professor Jack Goldsmith, came on board in the fall of 2003, I told him that I would step down immediately if he wanted to replace me. Jack declined my offer, and we quickly developed a strong relationship of trust and friendship. It still made sense for me to explore other opportunities, and I was interested in continuing to serve in George W. Bush’s administration.

One day early in 2004, I received a call out of the blue from Princeton professor Robert P. George, whom I did not know (but certainly knew of), who asked me whether I would be interested in becoming president of a small think tank in D.C. on whose board he sat, the Ethics and Public Policy Center. I learned much later that Justice Scalia had recommended me to Professor George. To make a long story short, in the second of two objectively foolish employment decisions that would define the course of my career, I accepted an offer from EPPC’s board and committed to start work in late March. I was looking forward to a quiet wind-down of my OLC work.

On the evening of March 10, I was at home giving my two young daughters a bath when my phone rang. It was Jack Goldsmith, sounding unusually frantic. “You’ve got to come into the office right away. I can’t tell you why, but you need to get in here as soon as possible.”

Some twenty minutes later, I was in my office. My memories of that evening are rather blurred. Jack asked me to draft a resignation letter for him. He also wanted me there in order to make sure that I could connect him with anyone who tried to reach him by calling his office phone or stopping by. I think that I had one or two brief conversations with Jack and perhaps a phone call or two with someone in the Attorney General’s office. Although I did not learn what was going on, I gleaned that there was some sort of crisis that threatened to lead to immediate resignations by Deputy Attorney General James Comey, FBI director Robert Mueller, Jack Goldsmith, and various other officials.

Attorney General John Ashcroft meets with President George W. Bush

As I learned much later, and as you have probably gathered, it was earlier that same evening that White House counsel Alberto Gonzales and White House chief of staff Andrew Card made their controversial hospital visit to Ashcroft’s bedside to get him to re-authorize a National Security Agency surveillance program. I have no ability to mediate conflicting versions of that visit or of the broader matter, so for present purposes will simply draw excerpts from then-Washington Post reporter Barton Gellman’s account:

In early evening, the phone rang at the makeshift FBI command center at George Washington University Medical Center, where Ashcroft remained in intensive care. According to two officials who saw the FBI logs, the president was on the line. Bush told the ailing Cabinet chief to expect a visit from Gonzales and White House Chief of Staff Andrew H. Card Jr…..

Alerted by Ashcroft's chief of staff, Comey, Goldsmith and FBI Director Robert S. Mueller III raced toward the hospital, abandoning double-parked vehicles and running up a stairwell as fast as their legs could pump.

Comey reached Ashcroft's bedside first. Goldsmith and his colleague Patrick F. Philbin were close behind. Now came Card and Gonzales, holding an envelope. If Comey would not sign the papers, maybe Ashcroft would….

Unexpectedly, Ashcroft roused himself. Previous accounts have said he backed his deputy. He did far more than that. Ashcroft told the president's men he never should have certified the program in the first place.

Some time after 10 p.m., Jack told me that I should head home. As I drove, I anguished over the prospect of multiple high-profile DOJ resignations. What could possibly lead President Bush to allow this to happen?

As I lay down to sleep, it suddenly struck me that, given how fast things were moving, perhaps the president wasn’t actually aware of the prospect of resignations. Surely this is something he should be informed of, I thought—not necessarily to change whatever his course of action was but at least to enable him to factor it into his calculus.

I had of course never before tried to get a message to President Bush, much less to do so late at night. But I recalled that an associate White House counsel whom I had worked with had recently become White House staff secretary, a modest-sounding title for a position that ensured immediate access to the president. So I got up, grabbed my BlackBerry, and sent to Brett Kavanaugh a message something like this:

I have no idea what is going on, but POTUS should be aware that Comey, Mueller, and others are all on verge of resigning.

Kavanaugh immediately called me back, and I restated what little I knew.

By Gellman’s account, my exchange with Kavanaugh had a real impact:

"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, declining to discuss the subject further. "I thought it important to make sure that the president was aware of that situation so that he could factor it in as he saw fit."

Kavanaugh had no more idea than Whelan, but he passed word to Card.

The timing was opportune. Just about then, around 11 p.m., Comey responded to an angry summons from the president's chief of staff. Whatever Card was planning to say, he had calmed down suddenly.

What was all this he heard, Card asked, about quitting?

"I don't think people should try to get their way by threatening resignations," Comey replied. "If they find themselves in a position where they're not comfortable continuing, then they should resign."

"He obviously got the gist of what I was saying," Comey recalled.

I had worried that, in the heat of the crisis, White House officials might not have promptly informed the president that Comey and others might be ready to resign. But on Comey’s telling, he evidently thought it improper to make clear that immediate resignation was a real possibility. So my BlackBerry message ended up informing Card of that important fact.

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In his memoir Decision Points, Bush writes that he learned on the evening of March 10 only that Ashcroft hadn’t signed the reauthorization: “I went to bed irritated and had a feeling that I didn’t know the whole story.”

When Bush learned that he (in his words) “was about to witness the largest mass resignation in modern presidential history, and [while] we were in the middle of a war,” he defused the crisis, with no resignations. He thus avoided—or, rather, deferred until December 2005—the “media firestorm” that he knew “would inevitably follow” disclosure of the NSA surveillance program. Bush writes:

I was relieved to have the crisis over, but I was disturbed it had happened at all. I made clear to my advisers that I never wanted to be blindsided like that again.

When I informed Jack Goldsmith of my BlackBerry message to Kavanaugh, Jack responded in amazement, “You might have just saved this presidency.”

* * *

Bush was up for re-election in 2004. Indeed, on March 10, as Gellman puts it, he “was stumping in the battleground state of Ohio, talking up the economy.” Bush ended up narrowly defeating John Kerry, by 34 electoral votes (and two points in the popular vote).

It does not take a lot of imaginative speculation to posit that the result in the election might have been very different if massive resignations in DOJ in March had led to intense controversy over the NSA surveillance program in the spring of 2004 rather than a year after the election. A swing of fewer than 60,000 votes in Ohio would have delivered victory to Kerry.

If Kerry had become president in 2005, then (at a minimum) he would have named the new Chief Justice after William Rehnquist’s death in September. There would never have been a Chief Justice John Roberts. Perhaps Justice O’Connor wouldn’t have retired in 2005, but if she did, Justice Samuel Alito would not have been named to replace her. The various appellate judges whom Bush appointed in his second term—including future Supreme Court justices Neil Gorsuch and Brett Kavanaugh—would not have reached the bench (or would have done so only years later). In all likelihood, we would have a very different Supreme Court.