Some Obvious Thoughts about the Comey Firing

Julian Sanchez

As it says on the tin, most of what I have to say about the
dismissal of FBI Director James Comey is obvious, and indeed, most
of it has already been
said well by others
. But sometimes it’s worth rehearsing the
obvious.

First: The position of FBI director has — since 1976, and
following J. Edgar Hoover’s umbral half century tenure — been
set for 10 years, in substantial part to keep it both symbolically
and practically removed from the vicissitudes of electoral cycles.
Formally, any president can, of course remove a director short of
that term, but it’s
happened exactly once
, 24 years ago, when Bill Clinton sacked

early-90s arcade screen mainstay
William S. Sessions, for

ethics violations
. It is not, traditionally, one of those posts
that just routinely swaps occupants when a new administration
pitches its tent: Firing a director is an extraordinary event, for
which one expects strong, clear reasons.

Second: The stated reasons for Comey’s dismissal are pretextual.
They are so transparently, ludicrously pretextual that we should
all feel at least a little bit insulted. The putative basis for
Comey’s firing is a three page memo, dated May 9, faulting his
public handling of the Hillary Clinton e-mail server investigation,
and a recommendation from Attorney General Jeff Sessions, also
dated May 9, that Comey be dismissed on that basis. The three-page
memo levels a number of fundamentally valid criticisms. It is also,
as perhaps three page memos must necessarily be, pretty conclusory:
It renders a verdict without much more than a gesture in the
direction of an argument, and preempts a pending Inspector General
investigation that would have produced a lengthy and serious
account and analysis of Comey’s actions. While I’m inclined to
agree with the memo’s critiques, underdeveloped as they are, they
would be an extraordinarily thin basis on which to remove an FBI
director, even if you thought they were the real basis.
And they’re clearly not the real basis.

We are asked to believe that the decision to fire the FBI
director — so abruptly he learned about it from a cable news
chyron while out of D.C. — was based on a dashed off memo,
and a response from the Attorney General, both issued the same day.
We are asked to believe that it was motivated by Comey’s breaches
of FBI protocol: First, in publicly criticizing Hillary Clinton,
rather than letting Attorney General Loretta Lynch announce the
decision that the former Secretary would not be indicted, and then
in informing Congress that he had (fruitlessly, as it turned out)
reopened the investigation into her e-mails. These are breaches
both Trump and Sessions praised
effusively at the time
, with Sessions even declaring that Comey
had an “absolute duty” to act as he did. All of them, of course,
were well known long before
Trump took office and chose to retain Comey
.

Firing a FBI director is
an extraordinary event, for which one expects strong, clear
reasons.

The most charitable thing one can say about this narrative is
that it is not even intended as a serious attempt to advance a
genuine rationale. It is an attempt to be cute. Having
been directed to concoct a reason
to eliminate Comey, the
Attorney General ran with a slapdash pastiche of Democrats’
complaints. Anyone who’s been on a long car trip with a sibling
knows this gag: “Stop hitting yourself! Stop hitting yourself!” The
only people even pretending to take this explanation seriously are
those paid for the indignity.

Third: In another sense, that hastily cobbled together memo
probably does reflect, indirectly, the authentic rationale
for Comey’s cashiering. What Comey has demonstrated, after all, is
that he is — sometimes to a fault — dedicated to
preserving the appearance of the Bureau’s independence from
improper political influence. He is willing to go over the heads of
the political appointees to whom he reports when necessary to do
so, publicly announcing the findings of an FBI investigation
without vetting by the administration. To a substantial extent,
Comey owes his current post to the fact that he was, famously

willing to say “no” to the White House
when he believed a
president’s demands to be at odds with the law. This seems like a
quality that Trump — who rages against the intransigence of
“so-called judges” in staying his executive orders — would
find intolerable in a subordinate under any circumstances. Against
the backdrop of a protracted and embarrassing investigation into
Russian electoral interference it must be downright terrifying.
Unsurprisingly,
press reports citing anonymous administration sources
are
already claiming that Trump’s rage at Comey’s unwillingness to take
dictation — both on the Russia question and Trump’s claims
about being wiretapped by his predecessor — are what
ultimately doomed him.

My own suspicion — for reasons not worth delving into here
— is that we’re unlikely to get any unambiguous, smoking gun
proof of knowing collusion between senior Trump campaign officials
and the Russian government, at least as far as electoral
interference is concerned. But it also seems quite likely that an
investigation into the campaign’s Russian ties —
which on the public record alone
raise more eyebrows than a
Spock cosplay convention — would turn up any number of other
unseemly or embarrassing facts the White House would prefer not to
have aired. Comey has demonstrated that he would likely be prepared
to disclose any findings he believed the American public had a
right to know, whether or not they amounted to clearly indictable
offenses — perhaps even over the objections of Attorney
General Jeff Sessions.

Fourth: It is no longer possible for the FBI to conduct its
investigation into the Trump campaign’s involvement in Russian
electoral interference in any meaningfully independent way. Agents
who might once have hoped that the FBI director would shield them
from retaliation if their inquiry turned up truths inconvenient to
the White House have now seen that director summarily and
humiliatingly dismissed, for inconveniencing the White House.
Nobody lower down the totem pole can possibly believe themselves
safe from reprisal under these circumstances, and even people of
great integrity have mortgages. Even if the next FBI director
avoids any hint of improperly seeking to influence the
investigation, the damage has been done; the sight of Comey’s head
on a pike is influence enough. And that’s the optimistic scenario.
That Trump chose to send Comey his pink slip in Los Angeles, with
no warning, ought to at least prompt some inquiries into whether
both his own files and those of the investigation remain secure.
The manner of his termination may be merely one more humiliation,
but it also had the side-effect of limiting his ability to take any
last-minute steps to forestall tampering. This last is, I hope, a
remote possibility, but it no longer seems inconceivable that this
administration might believe it can quash the investigation, purge
the case files, “move
on
,” and ride out a week or two of negative coverage. Either
way, whatever remains of a congressional investigation once the FBI
has been bent to the yoke would almost certainly be rendered a
cosmetic exercise, dependent as it necessarily would be on raw
materials provided by the intelligence community, even if we assume
the political will to continue a serious inquiry. Only a genuinely
independent investigation can at this point be credible.

Fifth: The fields of punditry are littered with failed
predictions that this scandal, at last, will be the one
Trump cannot survive, but it is nevertheless stunning how badly the
White House seems to have misread the politics of this. Even

many senior Republicans
are balking at making excuses for the
timing of Comey’s sacking. Trump, rather notoriously, seems to
regard any form of criticism as personal betrayal — a
declaration that one has joined the enemy camp. He therefore seems
not to have grasped that, notwithstanding the array of harsh
criticisms leveled at Comey by lawmakers of both parties, the
director enjoyed broad bipartisan respect, built up over a long
career. His actions over the past six months may have drawn down
that reservoir of goodwill, but they have not exhausted it. Much
has been made of Trump’s willingness to flout longstanding
political norms, but what’s less often observed is that this
appears to be as much a function of ignorance as brazenness. That
is, it’s not just that he’s decided he can get away with breaking
the rules — which thus far he has — but that he
routinely seems to do so unwittingly, unaware of what the rules
are. Many have expressed incredulity that the White House
truly believed it could take this step without provoking a
political firestorm; I find it all too plausible. As a result,
they’ve been caught unprepared, without any credible story that
would give members of his own party cover to defend the move with a
straight face.

Sixth, and finally: The question of Comey’s replacement is
hugely significant, and the confirmation hearings for the next FBI
director are bound to be explosive. One consistent theme of Trump’s
business career is that he has always viewed the law as a cudgel
with which to bludgeon adversaries — whether it’s
contractors coerced to accept half-payments
by the prospect of
ruinously expensive litigation or
journalists mired in frivolous libel suits
for printing
unflattering sentences. The prospect of a Federal Bureau
Investigation run in the same way ought to be genuinely
frightening, and with Comey out of the way, it seems all too
possible.

Julian Sanchez is a senior fellow at the Cato Institute and contributing editor for Reason magazine.

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