CHAPTER 6 ON THE TRACKS

If you can keep your head when all about you

Are losing theirs and blaming it on you …

—RUDYARD KIPLING, “IF”

IT WAS AFTER 7:00 P.M. on March 10, 2004. Another long, hard day as acting attorney general of the United States, a post I’d temporarily assumed on behalf of an ailing John Ashcroft that had put me in the center of an ugly battle with the Bush White House. It was about to get even uglier.

My security team was driving me in an armored black Suburban, headed west on Constitution Avenue, past museums, the Washington Monument, and the South Lawn of the White House. Senior government officials are assigned protective details based on threat assessments. As the United States Attorney in Manhattan, I didn’t have one, but since 9/11 the deputy attorney general was driven in an armored Suburban and shadowed by armed Deputy U.S. Marshals.

At the end of a long day, I was tired and ready to get home. Then my cell phone rang. On the line was David Ayres, Attorney General John Ashcroft’s chief of staff. Ayres was one of those rare people who seem to grow calmer in the middle of a storm. And there was a metaphorical hurricane hitting, so his voice was stone cold. Ayres had just gotten off the phone with Janet Ashcroft, who had been keeping vigil at her husband’s bedside at George Washington University Hospital. Attorney General Ashcroft had been hospitalized with acute pancreatitis, so severe that it had immobilized him with pain in the ICU.

Minutes earlier, Ayres reported, the White House operator had attempted to put a call through to the ailing attorney general from President Bush. I knew what this was about. So did Ayers. And so did the savvy Janet Ashcroft, who, like her husband, was a sharp and accomplished attorney.

Janet Ashcroft had refused the call. Her husband was too sick, she said, to talk to the president. Undaunted, President Bush then told her he was sending his counsel, Alberto Gonzales, and his chief of staff, Andrew Card, to the hospital to discuss a vital matter of national security with her husband. She immediately alerted Ayres, who called me.

After finishing the call, I spoke in an unusually sharp voice to the United States Marshals Service driver. “Ed, I need to get to George Washington Hospital immediately.” The urgency in my tone was all he needed to hit the emergency lights and begin driving as if the armored car had dropped onto a NASCAR track. From this moment forward, I was in a race—a literal race against two of the president’s most senior officials in one of the wildest, most improbable moments in my entire career.

*   *   *

The deputy attorney general job, especially in the years immediately after 9/11, was incredibly stressful. The more stressful the job, the more intentional I’ve always been about helping my team members find joy in our work. Laughter is the outward manifestation of joy, so I believe if I’m doing it right, and helping people connect to the meaning and joy in their work, there will be laughter in the workplace. Laughter is also a good indication that people aren’t taking themselves too seriously.

When I was deputy attorney general, as part of that search for joy and fun, I sometimes engaged in a bit of staff tourism. If I was going to a large White House meeting, for example, I would look to take a member of my staff who hadn’t been there before. Usually this was a fun experience for them. Once it almost went horribly wrong.

One of President Bush’s major initiatives involved finding ways, consistent with the law, for various departments and agencies to make grants to faith groups. Most agencies, such as the Department of Justice, had an office devoted to this faith-based initiative. In 2004, President Bush summoned the leaders of the departments to give him a report on their progress. I was attending for Justice. Shortly before the meeting, I learned that each “principal” meeting participant—which is what I was—could bring a “plus one,” meaning a staff member to support me.

I knew our faith-based work well, so I didn’t need a plus one, but it occurred to me that Bob Trono, one of my most valuable staff members, had never been to a White House meeting. Bob had been a federal prosecutor with me in Richmond and handled the Leonidas Young case, including the prosecution of the young minister who lied for Mayor Young. I asked him to come to Washington and help me oversee the United States Marshals Service and the Federal Bureau of Prisons. These were vital parts of the Department of Justice but rarely got White House attention. I thought it would be fun for him to get a chance to go.

When I suggested the idea, however, Bob wasn’t feeling it. He didn’t know anything about the faith-based efforts—literally nothing—and didn’t feel comfortable going to a briefing with the president of the United States on the subject. I replied that I would do all the talking and didn’t need his help. After further protests and reassurances, he reluctantly agreed. “Don’t worry,” I said. “I got this. I’m not going to screw you.”

Two things, besides me, screwed Bob. First, before the faith-based meeting was to start, I was unexpectedly called to a meeting in the Situation Room at the White House that went longer than I expected. Second, President Bush, who was not with me in the Situation Room, continued his disturbing pattern of starting meetings early. This was not quite as disruptive as President Clinton’s notorious tardiness, but having a president occasionally start early meant everyone had to show up well ahead. Soon after becoming deputy attorney general, I missed a morning terrorism briefing with the president because, arriving fifteen minutes early, I decided to go to the bathroom just outside the Oval Office (known in my family as “the highest potty in the land”) and returned to find the Oval Office door already closed and the meeting under way. I had no idea what the protocol was for entering an Oval Office meeting in progress, and I was new, so I didn’t test it. I left.

A nervous Bob found a chair against the wall in the Roosevelt Room, far back from the action. He could see an empty spot at the table where my name was spelled out on both sides of a triangular “tent card.” And true to form, George W. Bush walked into the room ahead of schedule and with a look of impatience. Poor Bob.

Bush could be impatient, and it drove me nuts that he started things early, but I was struck by his strong, and occasionally devilish, sense of humor. That year, 2004, he was in the thick of his reelection battle against Democrat John Kerry, who was hammering him for presiding over what Kerry called a “jobless” economic recovery.

In one of our daily morning terrorism meetings with the president, FBI director Bob Mueller told him that a suspected Al Qaeda operative named Babar, whom we were closely monitoring, had just gotten a second job in New York.

Mueller, not known as a comedian, then paused, turned his head toward me and added, “And then Jim said…”

Bush looked at me, and so did Vice President Cheney. I froze. Before our meeting, Mueller and I had discussed Babar’s second job and I’d made a private joke to the FBI director that I hadn’t expected to repeat to the president, who could occasionally display a temper.

Time slowed down, way down. I didn’t reply.

The president prompted me. “What’d you say, Jim?”

I paused and then, horrified, plunged in. “Who says you haven’t created any jobs; this guy’s got two.”

To my great relief, Bush laughed heartily. Cheney did not. On the way out of the Oval Office, I tugged Mueller’s arm.

“You’re killing me,” I said with a smile. “Don’t ever do that to me again.”

“But it was funny,” he replied, with the grimace that passed for his smile. Bob was not a jokester, and his severe demeanor intimidated most people. Word at the Bureau was that he had knee surgery not long after 9/11 and declined anesthesia in favor of biting on a leather belt. But I had seen enough to know he had a dry and slightly dark sense of humor. I was seeing it now.

“And it was also private, Bob. It was a joke between us.” He got it, although he still thought it was funny. From this distance, I can see that he was right.

I saw the devilish side of President Bush one cold winter morning, with the city covered by a freshly fallen snow. This frigid morning, Bush was seated in his normal armchair, with his back to the fireplace and close to the grandfather clock. The president was apparently about to head somewhere on Marine One, so, as was the custom, reporters were bundled in their winter coats and huddled outside near the Rose Garden to record his departure.

As I began briefing the president on a terrorism case, I could hear the sound of his approaching helicopter. The sound grew louder. Stone-faced, the president held up his hand. “Hold on a minute, Jim,” he said.

He kept his hand aloft to pause me, turned slightly in his chair, and looked out onto the South Lawn, where the press corps was gathered. I turned to follow his gaze and watched as the descent of the helicopter swept up the snow on the ground, creating a whiteout blizzard that coated all of the reporters in snow. Some of them looked like snowmen. Embarrassed snowmen. Without any expression on his face at all, Bush turned back to me, dropping his hand. “Okay, go,” he said.

Bush may have had a slight mean streak—he clearly enjoyed watching that scene—but he understood that humor was essential to the high-stress, high-stakes business we were in. We could be talking with deadly seriousness about terrorism one minute and then filling the Oval Office with laughter the next. It was the only way to get through the job—to intentionally inject some fun and joy into it. But in the White House that day, my friend Bob Trono found nothing joyful or humorous about his meeting with the president.

“Who’re we waitin’ on?” Bush asked, after he entered the Roosevelt Room five minutes before the scheduled start time.

Someone answered that Comey was downstairs in the Situation Room.

“Jim can catch up when he gets here,” Bush said. “Let’s get going.”

Bob could feel the perspiration trickle down his neck. The meeting marched through the departments, as various principals gave the president their briefings. Labor. Housing and Urban Development. Education. Agriculture. My seat sat empty. Bob’s ears began ringing as he realized he didn’t even know enough to give the president a bullshit answer. He had neither bull nor shit. Veterans Affairs. Health and Human Services. His head was swimming; he could feel his heart beating through his suit. Commerce. Small Business Administration. Beads of sweat on the back of his neck had by now soaked through his collar. Then the door burst open and, like the cavalry, I strode in.

“Hey, Jim, perfect timing,” Bush said. “I was just about to turn to Justice.”

I sat and gave him my spiel, the president thanked everyone for coming, and the meeting broke up. Bob didn’t look happy. “I’m going to kill you,” he whispered.

*   *   *

Although I may have had a different idea of “fun” than most, there were some parts of the Justice Department that had become black holes, where joy went to die. Places where morale had gotten so low and the battle scars from bureaucratic wrangling with other departments and the White House so deep, I worried that we were on the verge of losing some of our best, most capable lawyers. One of those places was the Justice Department’s Office of Legal Counsel, a kind of Supreme Court within the executive branch. Its gifted lawyers—who I often described as an obscure and isolated order of monks—would be given the hardest legal questions by people in other parts of the executive branch. Their job was to think about them well and render an opinion whether a proposed action was lawful, taking into account what the courts, Congress, and any earlier Office of Legal Counsel opinions had said on the topic. This was hard stuff, because often they had very little to go on in forming the opinion. It was harder still when the subject was classified, limiting their ability to talk about it with colleagues.

The head of the office was Jack Goldsmith. He was a former law professor and a generally sunny, cherub-faced man. But after only four months in his job, his list of problems was starting to dim that angelic glow. He had inherited a set of legal opinions written quickly and under great pressure by his predecessors following the attacks of September 11, 2001. Those lawyers had attested to the lawfulness of aggressive counterterrorism activities by the Central Intelligence Agency and the National Security Agency. The president and the intelligence community had relied on those opinions for more than two years. The opinions were dead wrong in many places, Goldsmith concluded. And the debate within the Bush administration over them was getting nasty.

Goldsmith’s primary concern was a then highly classified NSA program code-named “Stellar Wind.” Goldsmith and another brilliant department lawyer named Patrick Philbin had concluded that Stellar Wind, a program of NSA surveillance activities conducted in the United States against suspected terrorists and citizens without the need for judicial warrants, had been authorized by their predecessors on legally dubious grounds. Meanwhile, the entire Bush administration had come to rely on the program as a source of intelligence in the fight against terrorism. What Bush appeared not to know was that the NSA was engaging in activity that went beyond what was authorized, beyond even the legally dubious, and into what Goldsmith and Philbin concluded was clearly unlawful.

I understood the urgency behind these activities. Just two years had passed since the terrorist attacks of 9/11, when three thousand innocent people had been murdered in our country on a single, clear blue morning. That day changed our country and it changed the lives of all of us in government. We swore to do all we could to prevent such loss again. We would change the government, reshape the FBI, break down barriers, get new tools, and connect dots, all so we could avoid a pain so large as to be almost beyond description. I became the United States Attorney in Manhattan when Ground Zero, where thousands died, still smoldered. Late at night, I would stand at the fence and watch firefighters sift through the dirt to find those lost. Nobody needed to tell me how hard we needed to fight terrorism, but I also understood we had to do it the right way. Under the law.

Goldsmith and Philbin had shared their concerns with the White House—where the president’s counsel, Alberto Gonzales, and the vice president’s counsel, David Addington, were the primary contacts. Of the two, Addington was the dominant force. He was a tall, bearded lawyer with a booming voice that showed just a hint of a southern accent. In philosophy and temperament, he was a reflection of Vice President Cheney. He did not tolerate fools and had an ever-expanding definition of those who fit that category. After infuriating Addington by telling him the legal foundation of the program was falling apart, Goldsmith and Philbin then set about trying to convince Addington that I, the new deputy attorney general, should be told about—or “read into”—the Stellar Wind program so I could actually see what was going on.

Addington resisted this mightily. Since the program was conceived and authorized, he had succeeded in keeping the number of those who knew the details of the program to an absolute minimum—maybe a couple dozen throughout the U.S. government. Four people at the entire Justice Department had previously been read into the program, and that did not include my predecessor as deputy attorney general. On an activity of such profound importance, one that tested the limits of the law, that small circle was unusual if not unprecedented. Addington had even arranged to have the documents on the program held outside the normal process for presidential records. He—the vice president’s lawyer—kept the orders bearing the president’s signatures in a safe in his own office. Eventually, and only after considerable pressure, Addington relented and allow me to be briefed.

In the middle of February 2004, I found myself in a Justice Department secure conference room with the director of the National Security Agency, Air Force General Michael Hayden, getting from him a long-awaited briefing on the highly classified surveillance program. Hayden was an impeccably dressed, amiable man, with wire-rim glasses, a bald head, and a talent for folksy sayings and Pittsburgh Steeler references. As we sat down at the table, the general offered a preamble that I will never forget. “I’m so glad you are getting read into this program,” he said, “so that when John Kerry is elected president I won’t be alone at the green table.”

The reference to congressional testimony, behind a table that is often green, was jarring. What was this man about to tell me that required him to express his joy that I would join him in a congressional grilling once a new president arrived? And why on earth would he say such a thing to the second-ranking official of the United States Department of Justice? I had no time to do more than think these questions, because General Hayden plowed right into his briefing. His way of mixing folksy aphorisms and NSA-speak was both entertaining and reassuring. The problem, I would come to realize, was that his briefings were a river of really great-sounding stuff that didn’t make much sense once the briefing was over and you tried to piece together what you had just heard.

After Hayden departed, my Justice Department colleagues, Jack Goldsmith and Patrick Philbin, visibly exhaled. They then explained to me how the surveillance program actually worked and why so much of it was totally screwed up, as a matter of both law and practice. The NSA was doing stuff, they maintained, that had no legal basis because it didn’t comply with a law Congress had passed a generation earlier, which governed electronic surveillance inside the United States. The president was violating that statute in ordering the surveillance. The NSA was also doing other stuff that wasn’t even in the president’s orders, so nobody had authorized it at all. This wasn’t General Hayden’s fault. He wasn’t a lawyer or a technologist and, like Attorney General Ashcroft—who was prohibited from discussing the program even with his personal staff—Hayden was strictly limited in who he could consult about the program. The program was set up as a short-term response to a national emergency, because even Addington knew this was an extraordinary assertion of presidential power, so the president’s orders were for short periods, usually about six weeks. The current presidential order expired on March 11. Goldsmith had told the White House that he could not support its reauthorization.

Given what I knew, I had to ensure that my boss had all of the facts. Many times over the past two-plus years, Ashcroft had approved Stellar Wind, and he needed to know that had been a mistake and could not continue. On Thursday, March 4, 2004, I met alone with Attorney General Ashcroft to tell him in detail about the problems with the program and why we could not approve another extension. We ate lunch together at a small table in his office. I brought my own store-bought sandwich in butcher paper. (It was either turkey or tuna. I was so busy in those days that my assistant, Linda Long, held my money and followed instructions to alternate those two sandwiches, forever.) The attorney general had a fancier setup from his chef, which was good because I needed the salt and pepper shakers and pieces of silverware to represent parts of the program. I showed him which pieces we could make reasonable arguments to support and which we simply couldn’t and that would need to stop or be changed. Ashcroft listened carefully. At the end of lunch, he said the analysis made sense to him and we should fix the program to be consistent with the law. I told him we had been keeping the White House informed and I would now march out and execute on his authority.

After our lunch, Ashcroft headed to the United States Attorney’s office across the Potomac in Alexandria to do a press event. He never made it. He collapsed and was rushed to George Washington University Hospital in the District of Columbia with acute pancreatitis, an extraordinarily painful ailment that can also be fatal. By this time, I had gotten on a commercial flight to Phoenix for a government meeting. I learned of the attorney general’s condition as I walked off the plane. My chief of staff, Chuck Rosenberg, called to tell me that with Ashcroft incapacitated, I was now the acting attorney general and needed to be back in Washington. They were sending a government plane to retrieve me.

Back in Washington, I met on Friday with Goldsmith and Philbin. They had communicated the Department of Justice position to the White House. The renewal date was March 11, one week away, and we were not going to support a renewal in the program’s current form. That weekend, Goldsmith was summoned to meet with Gonzales and Addington, but no progress was made. Gonzales was, as usual, pleasant. Addington was, as usual, angry. Neither man could explain to Goldsmith why we were wrong. Goldsmith had also informed them that I had assumed the duties of the attorney general.

On Tuesday, March 9, I was summoned to a meeting at the White House in Chief of Staff Andrew Card’s office. Card was a pleasant man who was usually quiet in meetings I attended. He saw his role as ensuring that the process supporting the president worked. He was not an adviser, at least not in my experience. Goldsmith and Philbin were with me. The vice president was presiding. He was sitting at the head of the conference table. I was offered a seat to his immediate left. Also at the table were General Hayden, Card, Gonzales, FBI Director Bob Mueller, and senior CIA officials. Goldsmith and Philbin found chairs at the far end, down to my left. David Addington stood, leaning against a windowsill behind the table.

The first part of the meeting was a presentation by NSA personnel using charts to show me how valuable the surveillance program had been in connection with an ongoing Al Qaeda plot in the United Kingdom. The intelligence collected had produced a link chart that showed connections among members of a terrorist cell. That was important stuff. Of course, I knew enough about the matter to have serious doubts about whether the NSA’s program was needed to find those links, given the other legal tools we had. Still, I said nothing. Our concerns were not based on the usefulness of the program. That was for others to decide; our job was to certify that the program had a reasonable basis in law.

After the analysts rolled up their charts and left the room, the vice president took over. He and I were sitting close enough to touch knees, with Addington out of focus behind Cheney. The vice president looked at me gravely and said that, as I could plainly see, the program was very important. In fact, he said, “Thousands of people are going to die because of what you are doing.”

The air in the room felt thin. It was obvious that the purpose of this meeting was to squeeze me, although nobody said that. To have the vice president of the United States accuse me of recklessly producing another 9/11—even seeming to suggest that I was doing it intentionally—was stunning.

He didn’t want to hear another side. He didn’t seem to accept the obvious truth that there was another side. To him, he was right, everyone else was wrong, and a bunch of weak-willed and probably liberal lawyers weren’t going to tell him otherwise. My head was swimming, the blood rushing to my cheeks in anger, but I regained my footing.

“That’s not helping me,” I said. “That makes me feel bad, but it doesn’t change the legal analysis. I accept what you say about how important it is. Our job is to say what the law can support, and it can’t support the program as it is.”

Cheney then expressed a frustration that was entirely reasonable. He pointed out that the Department of Justice’s Office of Legal Counsel had written a memo to support the program in 2001 and that the attorney general had repeatedly certified the program’s legality in the two and one-half years since. How can you now switch positions on something so important? he asked.

I sympathized with him and told him so, but I added that the 2001 opinion was so bad as to be “facially invalid.” I said, “No lawyer could rely upon it.”

From the windowsill came Addington’s cutting voice: “I’m a lawyer and I did.”

I didn’t break eye contact with the vice president. “No good lawyer,” I added.

It was unusual for me to be nasty like that. But Addington reminded me of someone. He seemed like a bully, not too different in some ways from the kids who picked on me back in school, or even like me when I overturned that poor college freshman’s room. I didn’t like it. I had lived in a foxhole with Goldsmith and Philbin for the short several months I had been DAG. I had seen the impact of Addington’s threats and bullying on these exhausted and fundamentally decent people. In my opinion, his arrogance was the reason we were in this mess, and these two guys were really good people. I had had enough. So I was nasty. It was no surprise that the meeting ended shortly after, without resolution.

Attorney General Ashcroft’s chief of staff, David Ayres, had been keeping me informed about our boss’s condition. The situation was grim. He was in terrible pain in intensive care, with an illness that could cause organ failure and death in severe cases like his. Doctors had operated on him the very day I was meeting with the vice president.

That Wednesday was strangely quiet on the Stellar Wind front, despite the fact that the current order expired the next day. And then, late that day, Ayres called to pass on Janet Ashcroft’s urgent message—Andy Card and Al Gonzales planned to do an end run around me. They were on their way to the hospital, and I had to figure out what to do.

On the way to George Washington University Hospital, I called my chief of staff, Chuck Rosenberg. I deeply trusted him and his judgment. I told him what was happening and asked him to come to the hospital. Then I added, “Get as many of our people as possible.” I’m not sure, but I think this was an instinct from my days as a federal prosecutor in Manhattan. When a prosecutor was struggling in court, a call would go out in those days for “all hands to courtroom X.” When that announcement came, we would all get up from our desks and go, having no idea what it was about. One of our colleagues needed our support, so we went.

Whatever the source of my instinct, Chuck Rosenberg gave it life. He ran to members of my staff and soon a dozen lawyers were headed to the hospital, having no idea why they were going, except that I needed them there. After that, I called FBI Director Bob Mueller, who was at a restaurant with his wife and one of their children. I wanted Bob Mueller to be a witness to what was happening. Mueller and I were not particularly close and had never seen each other outside of work, but I knew Bob understood and respected our legal position and cared deeply about the rule of law. His whole life was about doing things the right way. When I told him what was happening, he said he would be there immediately.

My vehicle screeched to a stop in the driveway of the hospital. I jumped out and ran up the stairs to Ashcroft’s floor, relieved to learn that I had arrived ahead of Card and Gonzales. Ashcroft’s intensive care room was at the end of a hallway that had been cleared of other patients. The hall was dimly lit, occupied only by half a dozen FBI agents in suits, there to protect the attorney general. I nodded to the agents and immediately went into Ashcroft’s room. He was lying in the bed, heavily medicated. His skin was gray and he didn’t seem to recognize me. I did my best to tell him what was happening and to remind him that this was related to the matter we had discussed at lunch before he got sick. I couldn’t tell whether he was absorbing any of what I was saying.

I then went out into the hall and spoke to the lead agent for Ashcroft’s FBI protective detail. I knew Card and Gonzales would arrive with a Secret Service detail and, as incredible as it seems now, I feared they might try to forcibly remove me so they could speak with Ashcroft alone. While standing with the FBI special agent, I called Bob Mueller again on his cell phone. He was on his way.

“Bob,” I said, “I need you to order your agents not to permit me to be taken from Ashcroft’s room under any circumstances.”

Mueller asked me to pass the phone to the agent. I stood as the agent listened, crisply answered, “Yes, sir,” and passed the phone back.

The agent looked at me with a steely expression. “You will not leave that room, sir. This is our scene.”

I went back into Ashcroft’s room. By this point, Goldsmith and Philbin had joined me. I sat in an armchair just to the right of Ashcroft’s bed, staring at the left side of his head. He lay with eyes closed. Goldsmith and Philbin stood just behind my chair. I didn’t know it at the time, but Goldsmith had a pen in his hand, taking detailed notes of what he was seeing and hearing. Janet Ashcroft stood on the far side of the bed, holding her semiconscious husband’s right arm. We waited in silence.

Moments later, the hospital room door opened and Gonzales and Card walked in. Gonzales was holding a manila envelope at his waist. The two men, both among President Bush’s closest confidants, stopped on my side of the bed, by Ashcroft’s left leg. I could have reached out and touched them. I remember thinking I might have to do that if they tried to get Ashcroft to sign something. But that the idea even crossed my mind seemed crazy. I’m really going to wrestle with these men at the attorney general’s bedside?

Gonzales spoke first, “How are you, General?”

“Not well,” Ashcroft mumbled to the White House counsel.

Gonzales then began to explain that he and Card were there at the president’s direction about a vital national security program, that it was essential that the program continue, that they had briefed the leadership of Congress, who understood the program’s value, wanted it continued, and were willing to work with us to fix any legal issues. Then he paused.

And then John Ashcroft did something that amazed me. He pushed himself up on the bed with his elbows. His tired eyes fixed upon the president’s men, and he gave Card and Gonzales a rapid-fire blast. He had been misled about the scope of the surveillance program, he said. He vented that he had long been denied the legal support he needed by their narrow “read-in” requirements. Then he said he had serious concerns about the legal basis for parts of the program now that he understood it. Spent, he fell back on his pillow, his breathing labored. “But that doesn’t matter now,” he said, “because I’m not the attorney general.” With a finger extended from his shaking left hand, he pointed at me. “There is the attorney general.”

The room was quiet for several beats. Finally, Gonzales spoke two words. “Be well.”

Without looking at me, the two men turned toward the door. When their heads were turned, Janet Ashcroft scrunched her face and stuck her tongue out at them.

About five minutes later, after Card and Gonzales had left the building, Bob Mueller entered the room. He leaned down and spoke to Ashcroft in intensely personal terms—terms that would surprise those who knew the stoic Mueller well.

“In every man’s life there comes a time when the good Lord tests him,” he told Ashcroft. “You passed your test tonight.” Ashcroft did not reply. As Mueller wrote in his notes that night, he found the attorney general “feeble, barely articulate, clearly stressed.”

The moment had taken a toll on me. My heart was racing. I was feeling slightly dizzy. But when I heard Bob Mueller’s tender words, I felt like crying. The law had held.

But neither Gonzales nor Card were finished with me yet. An agent summoned me to the temporary command center the FBI had set up in the next room. Card was on the phone, and the president’s chief of staff, still reeling from his experience with Ashcroft, was pissed. He instructed me to come see him at the White House immediately.

I was so offended by the effort to manipulate a sick, possibly dying man to subvert the law that I couldn’t hold back any longer. “After the conduct I just witnessed,” I told Card, “I will not meet with you without a witness.”

He got hotter. “What conduct?” he protested. “We were just there to wish him well.”

That lie was poison, but I wasn’t going to rise to it. I said again, slowly and calmly, “After the conduct I just witnessed, I will not meet with you without a witness.” And then I added, because it had just occurred to me, “and I intend that witness to be the solicitor general of the United States.”

“Are you refusing to come to the White House?” Card asked, clearly taken aback.

“No, sir. I will come as soon as I am able to reach the solicitor general to come with me.” The call ended. I thought of Ted Olson, the solicitor general, for the same reason I earlier thought of Bob Mueller. As with Bob, Ted and I weren’t friends, but I liked and respected him; more important, so did the president and vice president. I needed his stature, his weight with them. I also had no doubt he would see the legal issues as we did, if the vice president would let him in the circle. I reached Olson, who was also out at dinner. He agreed to meet me right away at the Justice Department and to accompany me to the White House.

Just after 11:00 P.M., as a light rain began to fall, the solicitor general and I rode together in the U.S. Marshals armored car to the White House. We walked up the carpeted stairs to Card’s West Wing office, just steps from the Oval Office, where Card met us outside his door, asking Ted Olson to wait outside while he spoke with me. Card seemed calmer, so my instincts told me not to fight to have Olson in the room.

Once we were alone, Card began by expressing his hope that people would calm down. He said he had heard “talk about resignations.” I learned later that Jack Goldsmith had asked his deputy, who like most others was not read into the program, to prepare a letter of resignation for him. The deputy alerted a friend at the White House, who apparently had informed Card. The chief of staff could see catastrophe coming in the form of disastrous headlines and an election-year political scandal.

“I don’t think people should ever threaten to resign to get their way,” I replied. Instead, I said, they should work hard to get something right on the merits. If they can’t get there, and the issue is important enough, then they should quit.

The door to Card’s office opened. Gonzales walked in. He had seen Olson sitting outside and invited him into Card’s office as well. The four of us sat and quietly reviewed the state of play. We reached no agreement, and they did not explain what they had been doing at Ashcroft’s bedside, but the emotional temperature had dropped. We adjourned.

*   *   *

Years later, I had the chance to hear how my staff experienced that night, when so many of them knew something bad was happening and raced to the hospital, but didn’t know what was actually going on. Chuck Rosenberg, my chief of staff, walked the streets around the hospital but couldn’t find his car. He had jumped out of it and run to the hospital to be with me. In his haste, he forgot to mark where he had parked. He took a cab home to Virginia at 2:30 A.M. Rosenberg didn’t drink alcohol, so his wife was mystified by his inability to find his car. The mystery was only deepened by his explanation that “someday I may be able to tell you.” It was years before she would know the story. Fortunately, he found the family car at first light the next day.

Deputy Chief of Staff Dawn Burton’s story is my favorite. Around 7:00 P.M., with the boss gone for the night, she had been checking in with other staff members on the fourth-floor hall, trying to recruit a group to go have drinks. After being repeatedly told everyone was too busy, she retreated to her office to continue her own work. A short time later, a colleague burst into her office and said, “Grab your coat and meet us in the garage.” “Yes!” she shouted and hurried to the garage. There, she was bustled into the backseat of a car packed with staff for a harrowing but silent drive to George Washington University Hospital. She ended up pacing with colleagues in the hall down from Ashcroft’s room, with no idea why they were there. She made a last pitch for drinks as the group filed out of the hospital, but nobody had fun that night.

When I finally arrived home in the early morning hours of Thursday, March 11, the house was dark and quiet. Patrice and the five kids were long asleep. For days, Patrice knew I was struggling with a very hard problem, involving major conflict with the White House. I couldn’t talk to her because any communication about classified topics requires that both parties have the appropriate clearance and a work-related need to know the information. She didn’t have either. That separation from my family and closest friend added to my stress, as it does to many couples involved in classified work. I was sleeping little and deeply troubled, although she didn’t know what it was about. I went into the kitchen to grab a snack. Patrice had printed out an excerpt from my Senate confirmation hearing—less than six months earlier. As she and the kids sat behind me that day, senators had pressed me on how as deputy attorney general I would handle conflict with the White House. The context for their questions was how I would handle politically controversial investigations, but she had taped part of my answer to the refrigerator door:

I don’t care about politics. I don’t care about expediency. I don’t care about friendship. I care about doing the right thing. And I would never be part of something that I believe to be fundamentally wrong. I mean, obviously we all make policy judgments where people disagree, but I will do the right thing.

I awoke only a few hours later to news that terrorists had attacked commuter trains in Madrid during the night. The day was consumed by those terrible attacks and our effort, in conjunction with the CIA and other intelligence agencies, to find out whether there were serious threats of similar plots in our own country. We met early at FBI headquarters, and then Director Mueller and I drove to the Oval Office threat briefing. We met with the president, the vice president, and their senior team. There was no mention of Stellar Wind.

After the briefing, I stopped Fran Townsend in the hallway. I had known Fran since our days as prosecutors in New York. She was now serving as National Security Adviser Condi Rice’s deputy. Rice had not been at the Tuesday meeting with the vice president. Was it possible the national security adviser wasn’t read into the Stellar Wind program? If she were read in now, I wondered, might she be a voice of reason?

I told Townsend that I wanted to say a term to her and I needed to know if her boss recognized the term. Fran looked confused, but I pressed on. “Stellar Wind,” I said. “I need to know if she knows that term.” She said she would find out. Later that day, Townsend called me to say her boss knew that term, was fully up to speed, and had nothing to add. I would get no help from Rice.

Back at Justice, Goldsmith and Philbin confirmed that the White House had gone silent on Stellar Wind. We waited. Late that afternoon, the two came to see me. The president had reauthorized the program despite our warnings. The new order had some significant differences. The line for the attorney general’s signature had been removed and replaced with a line for White House Counsel Al Gonzales. Addington also added language to authorize NSA activity that had not been covered by his earlier drafts of the president’s orders.

We were done here. I knew this would be my final night in government service. The same for Bob Mueller. Like me, he could not continue to serve in an administration that was going to direct the FBI to participate in activity that had no lawful basis.

I drafted a resignation letter and went home and told Patrice I was quitting the next day. Again, I had to leave out the particulars of why.

Friday, March 12, was a somber morning. I was up and gone before breakfast, so I didn’t hear Patrice tell the kids, “Daddy may be getting a new job, but it is all going to be fine.” Bob Mueller and I went through the motions at our usual early-morning terrorism threat session at FBI headquarters, then we drove together to the White House for the regular Oval Office threat briefing. We both stood silently looking out the window at the Rose Garden as we waited for the door by the grandfather clock to open so we could join the president’s morning briefing. I was trying to memorize a view I would never see again. The door opened.

The meeting felt surreal. We talked about Madrid and Al Qaeda and everything other than the collision that was threatening to topple the administration. Then we got up and headed for the door. Mueller was ahead of me. I was just rounding the end of the couch, steps from the door, when I heard the president’s voice.

“Jim,” the president said, “can I talk to you for a minute?”

I turned back and President Bush led me across the Oval Office, down a short hall, and into the president’s private dining room. We sat at a table with one chair on each of four sides; the president sat with his back to the windows and I took the chair nearest the door.

“You don’t look well,” the president began, adding, with typical bluntness, “We don’t need anybody else dropping.” One of my colleagues from another agency had fainted when leaving the West Wing a day or so earlier.

“I haven’t been sleeping much,” I confessed. “I feel a tremendous burden.”

“Let me lift that burden from your shoulders,” the president said.

“I wish you could, Mr. President. But you can’t. I feel like I’m standing in the middle of railroad tracks. A train is coming that is going to run over me and my career, but I can’t get off the tracks.”

“Why?”

“Because we simply can’t find a reasonable argument to support parts of the Stellar Wind program.”

We then discussed the details of the program and the problematic parts. I finished by saying, “We just can’t certify to its legality.”

“But I say what the law is for the executive branch,” he replied.

“You do, sir. But only I can say what the Justice Department can certify as lawful. And we can’t here. We have done our best, but as Martin Luther said, ‘Here I stand. I can do no other.’”

“I just wish you hadn’t sprung these objections on us at the last minute.”

I was shocked. “If that’s what you were told, Mr. President, you’ve been badly misled by your staff. We have been telling them about this for weeks.”

He paused, as if digesting that revelation. “Can you just give me until May 6 so I can try to get a legislative fix? This program is really important. If I can’t get it, I will shut it down.”

“We can’t do that, Mr. President. And we’ve been saying that for weeks.”

I paused, took a breath, and then overstepped my role as a lawyer to offer policy advice to the president. “And Mr. President, I feel like I should say something else. The American people are going to freak when they find out what we have been doing.”

He seemed irritated for the first time. “Let me worry about that,” he said sharply.

“Yes, sir. But I thought it had to be said.”

He paused, and I knew our conversation was coming to an end. As I had told his chief of staff Wednesday night, I didn’t believe in threatening resignation to win an argument. I thought the argument should be fought on the merits, and then people could decide whether to quit after the decision. It always felt like cheating to say you would take your ball and go home if you didn’t get your way.

Still, I wanted to find a way to help Bush. This man, whom I liked and wanted to see succeed, appeared not to realize the storm that was coming. The entire Justice Department leadership was going to quit, and just as he was running for reelection. An uprising of that sort hadn’t even happened during the worst days of Watergate. I had to tell him, to warn him, but I didn’t want to break my rule. So I clumsily tried another approach.

“You should know that Bob Mueller is going to resign this morning,” I said.

He paused again. “Thank you for telling me that.” He extended his hand and showed me back to and across the Oval Office. I walked out past the clock and went immediately downstairs, where Bob Mueller stood waiting for me in the West Wing lower level. I had just started to describe my conversation with the president when a Secret Service agent approached to say that the president wanted to see Mueller upstairs, immediately.

Bob came down about ten minutes later. We went out to his armored Suburban and climbed in the back. He asked his driver to step out. (The driver later told me that he knew something was up because it was the first time in a decade of driving that he had been asked to step out.) He told me he and the president had covered much of the same ground. Bob confirmed to him that he could not stay as director under these circumstances and implored the president to listen to us. The president replied with a directive: “Tell Jim to do what needs to be done to get this to a place where Justice is comfortable.”

That was all we needed, an order from the president. That took us around the vice president, Card, and Gonzales, and even around Addington and his safe full of secret orders. We headed back to the Justice Department, where we briefed our senior staff. Our first task was to get more good lawyers read in. Ted Olson was preparing for a Supreme Court argument, so his deputy, Paul Clement, was added to the team, as were more of those brilliant monks from the Office of Legal Counsel. CIA and NSA lawyers joined the team. Addington couldn’t stop us from making the circle bigger.

The team worked all weekend to shape a new draft presidential order that narrowed the scope of the NSA’s authority. I decided to send a classified memo to the White House summarizing the problems and our recommended fixes. That would make it a presidential record forever and answer in a formal way the president’s direction to Mueller; this memo documented what needed to be done for Justice to be comfortable. It was a bit of a jerk move, because it created a permanent and complete record of all the ways they had been out of bounds, but the time to be a bit of a jerk was now. Goldsmith and Philbin hand-delivered the memo to Gonzales at home late Sunday night. It really pissed off some people at the White House.

On Tuesday, Gonzales called me to say a memo would be coming back to us from the White House. He asked me not to overreact and said the White House was committed to working with us. I don’t know whether I overreacted, but I sure reacted, and very strongly. The memo was a big middle finger, clearly written by Addington. It said we were wrong about everything, and acting inappropriately by usurping presidential authority. It rejected all our proposed changes, saying they were unnecessary legally and factually. It said nothing about our mothers being whores, but it might as well have.

I pulled out my resignation letter and changed the date to March 16. Screw these people. They had just gone back on the president’s directive to Bob Mueller and were leaving in place an unlawful order. I told Ashcroft’s chief of staff that I was resigning, again. He asked me to wait. He was sure Ashcroft would want to quit with the rest of us, but he was still too ill. Could we give him a few days to get stronger? Of course. I put the letter back in my drawer.

Two days later, without notice, the president signed a new order. It incorporated all the changes we had requested. All the changes that the middle-finger letter said were unnecessary. The order said the president was making these changes for operational reasons. Not because we said he had to or because our interpretation of the law required it. That was childish, but we really didn’t care. With that order, the program was now in a place where the Office of Legal Counsel could articulate reasonable arguments to support it, and they did, in a memo Goldsmith and Philbin and the new team members completed in early May.

The Stellar Wind crisis was over.

Now things would get really tough.

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