Former administration officials say Levin's ouster was not an isolated one. Months after Levin was let go, Patrick Philbin, a former top Justice Department lawyer, also was blocked from promotion within DOJ former senior administration officials say. Philbin, too, had sided with moderates in the Department and took issue with some of the legal reasoning used to authorize interrogations and warrantless wiretapping. Ironically, it was Philbin who was the first to alert Goldsmith of possible problems in several legal opinions written in the years after Sept. 11th. Although a solid conservative on national security issues, Philbin, like Levin, was aligned with the more moderate Deputy Atty. General James Comey.
Philbin was at Comey's side during the infamous hospital visit in March 2004, when then-White House Counsel Gonzales and Chief of Staff Andy Card rushed to the hospital room of a gravely ill Attorney General John Ashcroft to persuade him to reauthorize the wiretapping program after Comey refused.
In Senate testimony last year, Comey was asked what person he was referring to when he said, in a farewell address to DOJ, that some people "did pay a price" for their commitment to "getting it right and doing the right thing, whatever the price."
"I had in mind one particular senior staff of mine who's been in the hospital room with me and had been blocked from promotion, I believed, as a result of this particular matter," Comey said, under questioning from Sen. Russell Feingold, the Wisconsin Democrat. "It's Mr. Philbin."
Less than a year after the hospital visit — in early 2005, as Levin was getting shown the door … Paul Clement was nominated solicitor general and sought to make Philbin his principal deputy. The two had gone to Harvard Law School together, clerked for conservative icon Judge Laurence Silberman and gone on to clerk at the Supreme Court, Clement for Justice Antonin Scalia and Philbin for Justice Clarence Thomas.
But David Addington, Vice President Cheney's top legal adviser, furiously objected to the promotion, sources said. Gonzales refused to go against the White House, sources said, and Philbin was denied the post.
The job ultimately went to Gregory Garre, a lawyer in private practice who had clerked for the late Chief Justice William Rehnquist.
Philbin, like Levin, is now in private practice in Washington.