Comey vs. Trump Won't Restore Faith in the FBI

(Bloomberg View) -- James Comey’s extraordinary attacks on Donald Trump as “morally unfit” to be president are more than a ploy to sell books. The unprecedented phenomenon of a fired FBI director taking on a sitting president is also a symptom of the most fundamental challenge facing the U.S. political system today.

Put simply: There’s no single, nonpartisan trusted source of authority. In the recent past, nonpartisan law enforcement would have been trusted by broad swaths of the American people. Centrist news media would have been accepted by most members of both parties as authoritative.

That world is gone. As a result, Comey’s efforts embody a paradox: On the one hand, he wants to reassert the authority of the nonpartisan, nonpoliticized law enforcement community of which he is a lifelong member. On the other hand, by taking on Trump in such explicit terms, Comey opens himself to being seen as a pure partisan. In this contradiction, Comey demonstrates the near impossibility of restoring traditional models of authority.

To understand why Comey is the perfect vehicle for this enigma, it’s helpful to go back to the moment in which he first became famous. Comey wasn’t a well-known public figure until 2007, when he testified before Congress about what came to be known as the Ashcroft hospital-room incident.

In this dramatic tale, Comey and Jack Goldsmith, then head of the Office of Legal Counsel, rushed to Attorney General John Ashcroft’s hospital bed in March 2004 as the Dick Cheney wing of the George W. Bush administration sought to pressure Ashcroft to reauthorize secret domestic surveillance. Comey, as acting attorney general while Ashcroft was ill, had already refused to reauthorize the surveillance based on Goldsmith’s views that it wasn’t legal under existing statutes.

In this moralized vignette, Comey stood for nonpartisan independence of judgment. (Goldsmith, now my colleague at Harvard Law, did too. He later resigned from running OLC after retracting the so-called torture memos, actions which showed a commitment to the rule of law as a value transcending party politics or self-promotion.)

Comey’s conduct elevated him as a hero of moral authority in law enforcement. That in turn enabled Comey to be chosen as director of the Federal Bureau of Investigation under Barack Obama. That is, Obama saw in Comey a former Republican political appointee who deserved to run the nonpartisan FBI because he placed independence above party.

Regardless of whether you think that Comey began politicizing the FBI with his October 2016 announcement of the reopening of the Hillary Clinton email investigation, it’s pretty clear that Comey didn’t want to seem political even then. To the contrary, he says he was trying to avoid charges of political favoritism by acknowledging the investigation into a candidate that he and most other people expected to become president.

Now, some 15 months into the Trump administration, it’s already difficult to remember what such an aspiration could have looked like. We have seen an aggressive, self-conscious, intentional effort by the president to depict law enforcement as a wholly politicized endeavor.

And it’s working. If Comey really wanted to preserve the value of responsible, apolitical law enforcement, you would think he would refrain from writing a book attacking a sitting president and waging a media blitz to tar him as unfit. But in the current environment, Comey no doubt tells himself that silence would mean conceding to Trump. By speaking out, Comey must believe he is fighting for the traditional notion that as an independent nonpartisan, he should be believed.

A comparison to traditional media may be helpful. After the 2016 election, newspapers like the Washington Post and the New York Times worried that their old-fashioned editorial policies stressing evenhandedness helped elect Trump. To some degree, they have changed course, and now their headlines sometimes seem to suggest that they have actually gone into opposition. The problem with a headline saying that the president has lied is that, even if accurate, it makes the newspapers seem politicized rather than objective.

There’s no simple way out of this quandary, neither for the press nor for Comey. Silence really is acquiescence. But all-out attacks almost certainly cannot restore public trust or faith in nonpartisan, centrist institutions.

The only good news, for Comey and the media, is that the public does seem to care. We are in a moment of serious political engagement -- albeit engagement designed by partisanship rather than faith in authority or objectivity. The old consensus may never be coming back. But that public interest could leave our democracy stronger, more mature, more adult and less naïve.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

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