Editor’s Note: In March 2004, then U.S. Attorney General John Ashcroft was rushed to a Washington, D.C. hospital for emergency gallbladder surgery. During his incapacitation, James Comey, then Deputy Attorney General, became Acting Attorney General. As fate would have it, an immediate crisis and confrontation arose at the side of Ashcroft’s hospital bed over the Department of Justice’s decision to not approve the extension of legal authorities for a particular post 9/11 surveillance program. In 2007, a Chicago Tribune story reported that James Comey, then testifying at a Senate Committee hearing, had given a detailed description of the dramatic event. In 2013, a Cato Institute article was published speculating on the legal intricacies underlying this executive branch clash.
When asked about the event at his 55th Law School Reunion in 2022, Ashcroft took the opportunity to speak to the broad issue of when a federal government lawyer should consider resigning or threatening to resign. He also offered his opinion on when it is appropriate or not appropriate to talk publicly about confidential advice given a client when that client is the President of the United States.