So, Comey's accommodation appears to have been, basically, an understanding that whether or not the classified program was legal (and he, himself, could find NO legal basis for it), nevertheless there appeared NOT to be a
statutory requirement for the Dept of Justice to sign off on the legality of such (it was only
customary for DoJ to do so).
Since the issue of DoJ signature-certification of legality was based only "in custom" and not "in law", the ABSENCE of an AG's signature on a certification-of-legality document *might not* necessarily- legally inhibit execution of any program, REGARDLESS BELIEF BY THE AG OF NO LEGAL BASIS FOR IT(!).
He and Bush could have their cake and eat it, too: Comey's refusal to afford signatory certification of legality (of a program he deemed illegal) would not necessarily constitute condition for legal violation should the program in question go forward without DoJ signature. (Perhaps, this is why Comey wanted Ted Olson, Solicitor General, as witness:
To cover his ass. Olson would be responsible for making legal argument before the Supreme Court, should the issue arise later.)
...
SPECTER: Well, Mr. Comey, did you have discussions with anybody else in the administration who disagreed with your conclusions?
COMEY: Yes, sir.
SPECTER: Who else?
COMEY: Vice president.
SPECTER: Anybody else?
COMEY: Members of his staff.
SPECTER: Who on his staff?
COMEY: Mr. Addington disagreed with the conclusion. And I'm sure there were others who disagreed, but...
SPECTER: Well, I don't want to know who disagreed. I want to know who told you they disagreed.
COMEY: OK.
SPECTER: Addington?
COMEY: Mr. Addington. The vice president told me that he disagreed. I don't remember any other White House officials telling me they disagreed.
SPECTER: OK. So you've got Card, Gonzales, Vice President Cheney and Addington who told you they disagreed with you.
COMEY: Yes, sir.
SPECTER: Did the vice president threaten you?
COMEY: No, sir.
SPECTER: Did Addington threaten you?
COMEY: No, sir.
SPECTER: So all these people told you they disagreed with you? Well, why in this context, when they say they disagreed with you and you're standing by your judgment, would you consider resigning? You were acting attorney general. They could fire you if they wanted to. The president could replace you. But why consider resigning? You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney general, and that was that. Why consider resigning?
COMEY: Not because of the way I was treated but because I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for.
SPECTER: When they said you could find no legal basis for?
COMEY: I had reached a conclusion that I could not certify as...
SPECTER: Well, all right, so you could not certify it, so you did not certify it. But why resign? You're standing up to those men. You're not going to certify it. You're the acting attorney general. That's that.
COMEY: Well, a key fact is that they went ahead and did it without -- the program was reauthorized without my signature and without the Department of Justice. And so I believed that I couldn't stay...
SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general? COMEY: Yes.
SPECTER: So it went forward illegally.
COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.
SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?
COMEY: I believed so.
SPECTER: Then it was going forward illegally.
COMEY: Well, the only reason I hesitate is that I'm no presidential scholar. But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law. And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.
SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal. The point that I'm trying to determine here is that it was going forward even though it was illegal.
COMEY: And I know I sound like I'm splitting hairs, but...
SPECTER: No, I don't think there's a hair there.
COMEY: Well, something was going forward without the Department of Justice's certification as to its legality. It's a very complicated matter, and I'm not going to go into what the program was or what the dimensions of the program...
SPECTER: Well, you don't have to. If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?
COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality. There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign. So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality." And given that, I just -- I couldn't, in good conscience, stay.
SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?
COMEY: Yes, Senator. And I...
SPECTER: Did you make that determination?
COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning. I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation. SPECTER: OK. Then it wasn't illegal.
COMEY: That's why I hesitated when you used the word "illegal."
SPECTER: Well, well, OK. Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal. It's not illegal to violate custom, is it?
COMEY: Not so far as I'm aware.
SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.
COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was. The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.
SPECTER: OK. Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.
COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal. I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.
SPECTER: OK. I will not ask you -- I have a rule never to ask the same question more than four times... (LAUGHTER) ... so I will not ask you again whether necessarily from your testimony the conclusion is that what the president did was legal -- not illegal. Let me move on.