When President Trump danced on Robert S. Mueller III’s grave and wrote how “glad” he was that Mueller was dead, my thoughts flashed back 22 years to the riveting events of the evening of March 10, 2004. In a darkened George Washington University hospital room, a seriously ill John Ashcroft was holding his wife’s hand while the nation’s most powerful national law enforcement officials gathered around them. FBI Director Mueller was one of the last to arrive.
It was an evening that nearly led to a mass resignation of top Justice Department officials from the Bush administration that would have rivaled the Saturday Night massacre of Nixon’s Watergate. It was an evening when men such as Mueller and Deputy Attorney General James Comey stiffened their backbones and stood up to powerful White House officials making an end-run around the Constitution.
That night in 2004, his wife, Janet Ashcroft, stood at one end of her husband’s hospital bed holding his arm. Ashcroft had been seriously ill with pancreatitis for six days. He was in intensive care after surgery. To his left at the head of the bed was Comey, who had stepped in as AG during Ashcroft’s hospitalization.
Comey had been on his way home when he learned that the Bush White House was pressuring Ashcroft to sign an order reauthorizing a legally questionable domestic surveillance program under which some Americans’ telephone calls were intercepted without a warrant.
At 6:20 p.m. Janet Ashcroft explicitly refused to allow phone calls to her husband from the White House. She told White House Chief of Staff Andrew Card that Ashcroft could not accept a call from President George W. Bush. Ten minutes later, Card called David Ayers, Ashcroft’s deputy and his former top aide in the Senate, to press the point. Janet Ashcroft asked that the White House wait a day or two. They wouldn’t.
But by 6:45 she received a call that Card and White House Counsel Alberto Gonzales were coming to the hospital. The FBI detail at Ashcroft’s hospital room relayed to Comey what was happening.
Comey called FBI Director Mueller and told him Card and Gonzales were on the way to see Ashcroft. Mueller told Comey he would come to the hospital to assist. Before he set off he instructed the FBI detail outside of Ashcroft’s room not to allow Comey to be removed from the room under any circumstances. Comey and Mueller feared the White House officials would want to get Ashcroft alone.
Meanwhile, Comey told his FBI detail to hurry and they turned on the emergency lights as they sped along Constitution Avenue. When they arrived, Comey raced up the hospital stairs to make sure he got to the hospital room before Gonzales and Card. He did.
Comey later explained in Senate testimony, “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that..I was worried about him, frankly… And so I raced to the hospital room… And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off.”
Comey had briefed Ashcroft on the legal issues raised about the Presidential Surveillance Program a week earlier, shortly before the Missourian became ill and was rushed to the hospital. Comey and Jack Goldsmith, assistant attorney general for the Office of Legal Counsel, had legal concerns about the warrantless surveillance program that had been in operation since the days after the 911 terrorist attack. Mueller shared the concerns as did Ashcroft.
Comey and Goldsmith thought that the legal opinion by former Deputy Assistant Attorney General Jonathan Yoo that had initially approved the surveillance program was a weak legal foundation because it rested entirely on the president’s commander-in-chief powers. Yoo’s tenure at the Justice Department was controversial because he also wrote opinions approving enhanced interrogation techniques that critics considered torture.
Goldsmith and Comey had concluded the Justice Department could not sign off on a legal opinion resting entirely on the president’s authority as commander-in-chief when there was a contradictory law in place – the Foreign Intelligence Surveillance Act FISA – that provided a mechanism for obtaining warrants in just such situations.
There are parallels to President Trump’s broad assertions of his power as commander-in-chief to justify actions that conflict with statutes.
During the 2004 hospital room meeting, Comey had serious doubts about whether Ashcroft was in any condition to consider the issue. But he ended up surprising Comey once Gonzales pushed him.
Comey, who sat in an armchair at the head Ashcroft’s bed, described it this way in Senate testimony: “Mrs. Ashcroft stood by the bed holding her husband’s arm… it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter…
“And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, ‘But that doesn’t matter, because I’m not the attorney general. And as he laid back down…There is the attorney general,” and he pointed to me, and I was just to his left. The two men did not acknowledge me. They turned and walked from the room.”
Mueller arrived at the hospital room a few moments after Gonzales and Card left. Comey testified he immediately told Mueller what had happened. Comey added that Mueller “had a brief — a memorable brief exchange with the attorney general and then we went outside in the hallway.”
Although Gonzales and Card had left the hospital, they soon called back to Comey demanding he come to the White House for a meeting.
The confrontation at Ashcroft’s hospital room continued to reverberate through the next days and even years. The controversial NSA intelligence program was reauthorized without Justice Department approval on March 11, the day after the hospital visit. Comey and others in the Justice Department prepared letters of resignation. That included Director Mueller. Ashcroft too apparently planned to resign, according to congressional testimony. But President Bush interceded. After a discussion with Mueller about the Justice Department objections, Bush made some changes that enabled the Justice Department to sign off on the program. The threatened resignations were averted.
The issue came up again in 2007 after Gonzales became attorney general and was under fire for lying to Congress about the politicization of U.S. Attorneys offices.
One thing that congressional Democrats thought Gonzales was lying about was the hospital meeting when Ashcroft. Gonzales had suggested they were checking on Ashcroft’s health at the hospital. Mueller contradicted Gonzales, his boss, and confirmed the hospital meeting concerned the surveillance directive.
Mueller’s career of honesty and bi-partisan reliability was one of the reasons that he was chosen as special prosecutor for the investigation of Russian influence in the 2016 U.S. presidential election – an assignment for which Trump continues to attack him.
“Good, I’m glad he’s dead. He can no longer hurt innocent people!” Trump wrote after Muller’s death.
A Poynter analysis documented that Trump’s remarkable comment received almost no pushback among Republicans.
His right-wing media friends, such as St. Louis’ own Gateway Pundit, jumped in:
“Good Riddance Dirty Cop Robert Mueller – Here’s a List of the Many Fake Russians Used in His Russia Collusion Sham,” wrote Pundit Joe Hoft.
That is not likely to be the way history will record events, however.
Benjamin Wittes, editor of the bi-partisan Lawfare publication pointed out, “The Enduring Truths of the Mueller Report.” He wrote:
“The first enduring truth of the Mueller Report is that the Russians conducted a significant ‘active measures’ operation on a variety of social media platforms to interfere in the 2016 U.S. presidential election. As the report puts it: ‘By early to mid-2016, [these] operations included supporting the Trump Campaign and disparaging candidate Hillary Clinton.’
“The second enduring truth of the Mueller Report is that Russian military intelligence, in addition to the active measures, also conducted a campaign of hacking emails associated with the Democratic campaign and dumping them into the public domain. As the report puts it, ‘The release of the documents was designed and timed to interfere with the 2016 U.S. presidential election and undermine the Clinton Campaign.’ The Trump campaign showed a keen interest in the release of these documents and, at times, engaged directly with the entities through which the Russians were distributing them.”
Ironically, President Trump benefited from Mueller’ by-the-book,nonpartisan, letter-of-the-law approach to his service. Even though his investigation compiled evidence of obstruction by Trump, Mueller adhered to the Office of Legal Counsel’s opinion during Watergate that the president cannot be prosecuted while in office. He did this in face of disappointment from the left.
When Robert Mueller is weighed on the scales of history, he will be remembered as a war hero, FBI director, special counsel, honest, truthful, straight-arrow public servant – adjectives not likely to apply to his current detractors.
William H. Freivogel is the publisher of GJR, a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar.
