With the official publication on Tuesday of former FBI Director James B. Comey’s memoir, “A Higher Loyalty,” another round opens in the Washington wrestling match between Comey and the president of the United States.
Trump, self-cast in the evil wrestler mode — as he puts it, “When someone attacks me, I always attack back … except 100x more” — launched into some pre-game trash talk over the weekend.
With words that literally could not have come from any other president, Trump called his antagonist a “proven leaker and liar” and a “weak and untruthful slimeball.”
Trump opponents, meanwhile, have cast Comey as the Avenging Angel, a role he in fact has been happy to adopt, beginning with the title of his book, which suggests a career in public service above politics and marked by fealty to fairness and the rule of law.
Comey has, however, made it clear that he too will not be an altogether gentlemanly adversary. In his ABC-TV interview, he disparaged Trump as a “serial liar” who “treats women like meat” and “is a stain on all who work for him.” Parental discretion will be advised in the coming days.
We know the White House strategy: Trump’s supporters and Trump himself will not try to defend the president’s behavior. The goal will be to defame Comey and place him at the center of a mythical, tyrannical Deep State.
In truth, the president’s forces have some material to work with, and the publication of the memoir gives them more.
For starters, there is Comey’s unprofessional treatment of the Hillary Clinton email probe, most notably the decision to offer, gratuitously, his personal opinion that Clinton had been “extremely careless” in her handling of classified information as he announced that the bureau would not pursue criminal charges.
Comey’s defense of his conduct is weak. He sets out the factual context of the decision and his own anxiety and misgiving about it, then offers that if he could do it again, he would try to find “a better way to describe Secretary Clinton’s conduct than ‘extremely careless.’ “
But the obvious lesson eludes him, which is that offering the postscript of his personal impressions — however delicately phrased — was an improper arrogation of power. In fact, he should have stuck to investigation, announced his decision to not bring charges (in which it turns out every member of the FBI on the case concurred), and left the stage. We will never know whether his casting judgment on Clinton’s behavior, along with his subsequent decision to re-open the probe and announce it publicly too, may have thrown the election to Trump.
The same strain of self-righteousness emerges in Comey’s revelation that he “must have” been factoring in his assumption that Clinton was going to win the election when he made his decisions about the email probe. His rationalization is that Clinton’s tenure would have seemed less legitimate had the re-opened probe not come to light before the election. Even if this were so — and it is dubious — it is not the sort of calculation that the FBI is tasked with making.
A similar imperiousness informs a series of subtle and not-so-subtle digs at more or less the entire Department of Justice leadership during his time in office, including Loretta Lynch, Sally Yates, Rod Rosenstein and Jeff Sessions, all of whom fail to measure up to his beau ideal of ethical leadership.
So Comey is not the apotheosis of prosecutorial virtue. He is not, for example, special counsel Robert S. Mueller III, and one is left to wonder how Mueller would have approached and handled the decisions Comey was faced with. But judging the former director’s record by that standard misses the most important takeaway from his memoir. In the “forest fire” (Comey’s term) of the Trump presidency, the indispensable aspect of the record he presents is its highly credible account of possibly criminal conduct by the president. In this, Comey is a careful and honest witness. None of his failings undermines his version of events involving Trump’s efforts to shut down the Russia probe.
There is also no doubt about Comey’s largely admirable record of public service as a prosecutor, deputy attorney general and FBI director. He was a strong and popular director, contrary to the president’s assertion. He is rightly lionized for his courageous stance in favor of the rule of law when the George W. Bush White House tried to ram an illegal surveillance program through the DOJ and past an ailing Atty. Gen. John Ashcroft.
There’s a more fundamental reason that Comey’s feet of clay are not worth dwelling on. Trump’s presidency presents a deadly serious challenge to constitutional norms and the rule of law. We should be resolutely clear-headed in recognizing the gravity of the stakes. It would be a mistake to contrast Trump’s tenure with an idealized account of government virtue where public officials are without blemish. Perfection isn’t the goal, just restoring our government to normalcy, with normal failings, and extirpating the abnormal dangers of the Trump presidency.
Comey committed his share of standard Washington venial sins. His flaws, though, fall within the norms of constitutional values and an unquestioned commitment to the proposition that no person is above the law. The Trump presidency, at first seemingly a buffoonish interlude, has come to present a genuine threat to that foundation. Repairing it will require vigilance and dedication even after Trump is gone.
Harry Litman teaches constitutional law at UC San Diego. He is a former U.S. attorney and deputy assistant attorney general.