If Trump’s conduct is to be publicly scrutinized, Comey isn’t the man for the job.
When former FBI director James Comey sat down with ABC’s George Stephanopoulos, the script was clear. This was the moment when Comey was going to unload on Donald Trump, explain his role in investigating Hillary Clinton to angry Democrats, and disclose some delicious, salacious new details about Trump’s perfidy and corruption. If Michael Wolff’s Fire and Fury ultimately fizzled because readers couldn’t separate fact from fiction, then surely Comey could deliver the goods, right?
Well, he delivered, all right — just not the goods Democrats wanted. In one hour of television, Comey and Stephanopoulos inadvertently reaffirmed what we already knew: In 2016, the entire American political system cracked, including — in crucial ways — the FBI.
But before we get to Comey, let’s pause for a moment and ponder the immense challenge that the Bureau faced. The two major political parties nominated candidates who had long histories of ethically, morally, and legally problematic behavior. Neither possessed a character fit for the presidency. But the Democrats went so far as to nominate a candidate who was known to be under active, credible FBI investigation. Comey lays out the political problem well:
If we decide there is no criminal case there and we recommend no prosecution, the Republicans will be screaming that we let, you know, the greatest crime go since the Rosenbergs were executed for selling our nuclear secrets. And if we prosecute her, the Democrats will scream that we’re just doing it out of some sort of partisan bias because I’m a former Republican appointee and so the system is rigged against Hillary Clinton. Either way, we were going to be attacked.
So, what to do? Comey’s response sounds perfect:
And this may sound strange, that’s kind of freeing. If you know you’re totally screwed and you know that people are going to be angry at you no matter what you do, you can’t do anything about it. And so you just put your head down and you do your job. And you let the facts and the law decide what you should do.
Exactly. Investigate the facts, apply the law, and let the chips fall where they may. But did that happen? Let’s read a different portion of the transcript. Here Comey justifies his decision not to recommend prosecution for Hillary Clinton:
They’ll prosecute cases like David Petraeus’. But they’re very unlikely to prosecute a case unless you can show the person, like Petraeus, clearly knew they were doing something they shouldn’t do. There’s evidence of obstruction of justice or disloyalty to the United States, spy — indications.
But without those, sloppiness, even extreme sloppiness, is handled through administrative discipline. Somebody is not prosecuted. And I’ve gone through 50 years of cases. I don’t know of a case where anyone has ever been prosecuted for just being careless, even extremely careless. And so when the case was open, we know that history.
What’s missing here? The words of the relevant statute — a statute that he elsewhere dismisses as “passed 100 years ago.” It doesn’t matter if it was passed at the founding of our republic, it is still governing authority, and that governing authority states that the relevant legal standard imposes criminal penalties when a person, “through gross negligence,” removes “information relating to the national defense” from its “proper place of custody.” It does not add on an additional requirement of “obstruction of justice” or “disloyalty.”
In other words, when placed in the middle of an extraordinary, high-stakes investigation, James Comey applied the wrong legal standard, and he’s still applying the wrong legal standard today.
While applying the actual law to the relevant facts may be politically difficult, that happened to be Comey’s job. Comey very ably outlines various types of pressure and “inappropriate” conduct from the Obama administration (from the attorney general’s insistence that Comey call the Clinton investigation a “matter,” to her tarmac meeting with Bill Clinton, to President Obama’s own pronouncements about Hillary’s conduct), but in the end it appears that he couldn’t withstand the heat.
While applying the actual law to the relevant facts may be politically difficult, that happened to be Comey’s job.
Think of the staggering consequences that flowed from this simple decision — and from the poor decisions that followed. First, by punting on the language of the actual statute, he let the Obama Department of Justice off the hook. Then, conscious that he was punting in the face of well-known and highly controversial public statements from President Obama (and in the aftermath of the tarmac meeting), he departs from common practice to issue a public statement excoriating Hillary Clinton anyway. Finally, after very publicly closing the book on the case, he finds himself in yet another bind when the FBI discovers potentially relevant information on Anthony Weiner’s laptop.
With the first move — applying the wrong legal standard to the case — he cleared the way for Hillary’s candidacy. With the second and third — issuing unusual statements that highlighted Hillary’s misconduct — he may have fatally undermined her campaign. And all the while, he was not considering the proper legal standard but pondering polls and public perception. For example, his first major public statement was an “unprecedented” act driven by concerns for institutional credibility:
What was different here is I decided, given some things that had happened, that to protect the institutions, we actually had to step away from the Department of Justice and tell the American people, “Look, here’s what we did. Here’s what we found. Here’s what we think. You can count on the fact this was done in an apolitical way. Your organization of justice acted the way you’d want it to be.” And that if I’d done the normal thing, that wouldn’t have happened and the institutions would’ve been damaged.
While public perception matters to the credibility of any law-enforcement agency, credibility ultimately turns on the law. Credibility turns on professionalism.
Far from being “freed,” Comey found himself in a prison of his own making. One can’t know what was in his heart — his motives could have been as pure as the driven snow — but the end result looks a lot like a person who tried to please his political masters in the ultimate question (should Hillary be prosecuted?) while preserving at least a reputation for independence and transparency through his public statements.
It’s too simple to say that we’re living in the world that Comey made. We’re living in the world that exists when multiple institutions place political ambition over principle, when negative polarization trumps truth and justice. It’s a world where the guardrails are increasingly fragile, where institutions and individuals who should be repenting of their considerable sins are instead holding themselves up as exemplars of duty and morality.
Ever since the 2016 election ended, I’ve heard smart and thoughtful people say that they don’t want to see America become a “banana republic” where the victors prosecute the losers, or where the elites use criminal law to overturn the results of an election. I’d put it differently. I don’t want to live in the kind of banana republic that nominates corrupt candidates and then allows them to use their power and influence to avoid accountability.
Donald Trump fired Comey for the wrong reasons. Trump’s team is rightly subject to multiple federal investigations, and these investigations should be allowed to run their course without interference from the president. But in watching Comey speak, I can say this with high confidence: If Trump’s conduct is to be scrutinized, James Comey is not the man for the job.
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