April 23, 2018


Behind James Comey's 'A Higher Loyalty' (Benjamin Wittes, April 18, 2018, Lawfare)

Comey's efforts to break down the cult of the directorship--its successes and its limitations--offer an interesting window into one of the larger themes he struggles with in this book: the effort to insulate the FBI from the perception of intervention in politics when it is investigating both major parties' presidential nominees during an election campaign. This, perhaps unsurprisingly, turns out to have been even more impossible than eliminating the cult of the directorship. However earnestly one tries, the effort to act apolitically will be understood as politicization. The explanations one then offers of one's conduct and thinking will be interpreted as ego-driven self-justification. The steps one takes to keep the bureau out of politics in such a situation--however sincere, however open--become politicization.

The problem reminds me of Kierkegaard's famous passage on marriage:

If you marry, you will regret it; if you do not marry, you will also regret it. . . . Laugh at the world's follies, you will regret it; weep over them and you will also regret that. . . . . Hang yourself, you will regret it, do not hang yourself, and you will also regret that; hang yourself or do not hang yourself, you will regret both. . . . This, gentlemen, is the sum and substance of all philosophy.

That the steps designed to keep the FBI out of politics--and perceived as out of politics--will themselves be taken as political acts is not a reason not to undertake the effort. The effort itself is a sacred trust. But it is a reason to understand the inherent limits of the undertaking. Charge Hillary Clinton and you will regret it. Don't charge her and you will regret that too. Explain your reasoning and you will regret it. Don't explain your reasoning and you will regret it. Inform Congress of your actions immediately before an election, and you will regret that. Don't inform Congress and you will regret that too. I don't know if this is the sum and substance of all philosophy, but it is a good rule of thumb: The steps you take to remain apolitical will make you political.

Or as Comey describes it in the book:

"You know you are totally screwed, right?"

The FBI deputy director in the summer of 2015 was a plainspoken, smart, and darkly funny career special agent named Mark Giuliano.

I smiled tightly. "Yup," I said. "Nobody gets out alive."

In contrast to the famously tortured Kierkegaard, Comey describes it as liberating to accept in advance that there will be repercussions however one handles a fateful decision. But the problem--when that situation is not a personal one like marriage but a public one like investigating both presidential candidates--is that the decision maker won't be the only one with regrets and retroactive doubts. The public will have them, too, and may judge the decision maker's actions not just in light of the integrity of his or her processes and intentions but also in light of the action's consequences. Indeed, the public may judge only in light of consequences. In doing so, the public will have the benefit of hindsight. And it will be ruthless.

It is very hard for people to accept that bad outcomes arrived at by decent people acting in good faith are merely that. People need to believe, for example, that George W. Bush lied the United States into war in Iraq--a proposition for which there is zero evidence. People don't like multivariate causation either. There needs to be one explanation for Trump's victory. If you're not one of the people in the FBI cafeteria, people who have had cause to develop trust in institutional processes and in Comey himself, it is all too easy to personify the outcome in him.

It is a singular mark of the decency and moral seriousness of Barack Hussein Obama that he hasn't fallen into this trap. One striking feature of Comey's narrative is his evident admiration for Obama--as a leader, as a policy thinker and as a person. The right-wing fever swamp is likely to react to this with an "of course," having already priced Comey in as part of the Hillary-Obama-left-elite conspiracy against the president. That would be wrong. The relationship is surprising. Comey and Obama come from very different worlds politically. Comey was surprised that Obama would seriously consider him to run the FBI. He criticizes Obama at points in the book, such as for declaring publicly that Clinton had not damaged national security with her private email server. He also ruminates on whether Obama was overly confident intellectually. But the broader portrayal is extremely flattering. He praises the way Obama never sought a close relationship with him and contrasts this sharply with Trump's attempts to cultivate a patronage relationship with him. He praises at length the way that Obama listens. And when he recounts their final meeting, the emotion is still fresh:

President Obama then leaned forward, forearms on his knees. He started with a long preamble, explaining that he wasn't going to talk to me about any particular case or investigation.

"I just want to tell you something," he said.


"I picked you to be the FBI director because of your integrity and your ability," he said. Then he added something that struck me as remarkable.

"I want you to know that nothing--nothing--has happened in the last year to change my view."

He wasn't telling me he agreed with my decisions. He wasn't talking about the decisions. He was saying he understood where they came from. Boy, were those words I needed to hear.

I felt a wave of emotion, almost to the verge of tears. President Obama was not an outwardly emotional man in these kinds of meetings, but still I spoke in unusually emotional terms to him.

"That means a lot to me, Mr. President. I have hated the last year. The last thing we want is to be involved in an election. I'm just trying to do the right thing."

"I know, I know," he said.

When Comey first told me about this interaction, he emphasized his gratitude for a particular nuance in the exchange: Obama's emphasis that his comments applied to all investigations, not any particular one. Presidents, after all, shouldn't be talking to FBI directors about specific investigative matters. And it moved Comey that Obama, even in an emotional moment in which it would have been easy to blame him and get specific, understood and respected that.

Obama, incidentally, has been careful with his public words as well. Like so many people in the FBI, he has reason to have confidence in the integrity of Comey's decision making--if not to agree with his decisions--and that is disciplining in alleviating the Kierkegaardian problem. 


The general public does not have the benefit--or, if you prefer, the biasing influence of proximity--that either the people in the FBI cafeteria or Obama have in developing confidence in Comey's integrity to ameliorate the instinct to retroactively second-guess. This is a problem not because it causes an unfair judgment of Comey--who is a big boy and can take it--but because the obsessive focus on his decision making in the Clinton email investigation consistently distracts attention from the crisis at hand.

For a lot of readers, the easy part of the book will be Comey's discussion of his interactions with Trump. There is no moral complexity here. There are no serious questions of whether Comey should have behaved differently--not in the macro sense, at least. There is only the question of whether one believes Comey or Trump about the nature of their interactions. And to pose that question is also to answer it. One of them is a man who, whatever his flaws, is not a liar and who has numerous contemporaneous corroborating witnesses and documents. The other is Donald Trump. I suppose another question is whether one believes the president's behavior as described by Comey is acceptable. But to ask that question is to answer it too. Of course Comey is telling the truth. And of course the president's conduct is not acceptable.

Posted by at April 23, 2018 4:28 AM