So, Kmiec's got his work cut out. He spends a lot of time arguing as to whether Bush had the authority to ignore the advice of his own Justice Department. Maybe he does, but the point here is less about the interplay of executive agency authority than it is as to whether a) Bush's ultimate determination was lawful and b) whether or not it is remotely ethical to try and take advantage of a virtually incapacitated man in order to seize a massive amount of new executive power. And so, here Kmiec has a simple argument: It's not Watergate.
Now, I'm not sure who has made the Watergate comparison thus far. Indeed, while Kmiec calls Comey's testimny "histrionic," the clip seems to show otherwise. And furthermore, as Orin Kerr notes, there is significant space between "not Watergate" and "not newsworthy," in which this case very well might fall. Nixon seems to have spoiled us--there are Presidential scandals that fall short of breaking and entering, and this seems to be an obvious case.
But you know what? As Steve Benen puts it, if you want to talk Watergate, let's talk Watergate:
Attorney General Richardson and DAG Ruckelshaus did not resign in October 1973 because they concluded there had been a "burglary for purposes of political dirty tricks," in Kmiec's words. The burglary was an old story. They resigned because the President insisted that they fire prosecutor Archibald Cox when Cox subpoened Nixon's tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales.
Cox, I'd imagine we would hear now, served "at the pleasure of the President" as well.
Let's be clear--there is very strong evidence that the program President Bush had been and wished to continue to operate was illegal, and that's a crime. We shouldn't minimize that. But as Watergate (among others) reminded us, sometimes it isn't the crime, it's the cover-up. And for all the trouble I have with the idea of warrant-less domestic survaillence, the behavior of this administration in trying to get legal approval--though not a "cover-up"--betrays a disrespect for established procedures and basic integrity that threatens the entire character of the US government. That, amazingly, might be the worse sin here.