Yeomans Work

Jim Comey Dives into the Swamp

April 11, 2018

The raid on Michael Cohen’s office and dwellings may be a seminal moment in the legal denouement of Trump.

Its immediate salutary effect, however, has been to distract the media world temporarily from James Comey’s forthcoming book and the public relations circus that will follow. Comey previewed his book as a direct challenge to Trump’s integrity. That may prove true, but the book will also be Comey’s latest display of hubris, the most recent act in over a decade of self-righteous self-promotion. And this round comes with real consequences. Comey threatens the success of the Mueller investigation and will further erode the image of public servants.

Jim Comey’s public life has revealed him to be a very complex man. By all accounts, he believes deeply in the mission and sanctity of public service. His career as U.S. Attorney for the Southern District of New York, Deputy Attorney General, and Director of the FBI is filled with positive accomplishments. It is also marked by periodic bouts of hubris characterized by a naïve or myopic view of his own correctness, no matter the accumulated wisdom of others or the institutions he has served.

The first such public bout occurred in 2007 when Comey appeared before the Senate Judiciary Committee to describe his rush to the hospital room of Attorney General John Ashcroft to head off White House Counsel Alberto Gonzales and Chief of Staff Andy Card. Comey, as acting Attorney General, had concluded that he could not reauthorize the Bush warrantless surveillance program. He, along with the entourage he had collected, headed off the White House end-run to reach Ashcroft and threatened to resign if the program were not changed. After much drama and a tweak (we’re not exactly sure what), Comey relented and the Bush administration carried on with its warrantless surveillance program that had not been authorized by Congress and was constitutionally suspect. Yet Comey, in secretly orchestrated testimony, managed to establish himself as a civil liberties hero who stood up to the president. Sen. Schumer and his counsel, Preet Bharara, concealed the subject of Comey’s testimony from those of us working on the committee, presumably to maximize the splash and preserve credit. It was great theatre, but it foretold mistakes to come.

Those mistakes cascaded during the 2016 campaign. At his July press conference announcing that no reasonable prosecutor would charge Hillary Clinton for the handling of her emails, he transgressed a fundamental norm of the Justice Department by editorializing on Clinton’s conduct. It’s a black letter norm that Justice Department prosecutors do not comment on the behavior of someone they will not prosecute. He also usurped the roles of the Attorney General, Deputy Attorney General and a host of prosecutors who worked on the case and who should have made the final call. He then sent the infamous letter to Congress eleven days before the election, re-opening the investigation in defiance of Justice Department policy against taking major investigative or prosecutorial steps shortly before an election that might affect the election. He followed that with another letter days before the election, re-closing the investigation. Trump rode Comey’s norm busting, Russian assistance, and lots of Clinton shortcomings to victory.

By rejecting the accumulated wisdom of the FBI and Justice Department, Comey became a political player. He stepped off the platform that keeps law enforcers above the muck of political debate and gives their actions integrity and legitimacy. While he was playing out his miscues regarding the Clinton investigation, he never revealed that candidate Trump was subject to a far more serious FBI investigation.

Comey has never been able to embrace fully his errors. With publication of his book, he promises to dive head first into the swampy politics of Trumpism. In doing so, he will further erode the institutions he served. He will open them further to charges of political bias. He will also put his credibility to the test.

Comey is entitled to write his book. Indeed, the stories of public servants can be enlightening and uplifting (in a nerdy sort of way). But, releasing his book now – in the middle of Mueller’s investigation – threatens real harm. The book will contain statements that will become staples of Trump’s defense and of the defenses of those around him. The book may be perfect, but more likely it will contain errors, contradictions and inconsistencies and it may not square with parts of the public record. It may contradict statements Comey has already made to investigators and the grand jury, undermining his credibility and making him less effective as a witness at the trials of Trump underlings or Trump’s impeachment. These dangers will be greatly exacerbated by Comey’s many scheduled public appearances at which his every word will be parsed by the Trump legal and political teams. The more Comey becomes a political figure, the less likely he is to be believed by people who don’t support the political consequences of his words.

So, why release the book now? The first answer is “Comeyness.” The power that convinces him that his six feet and eight inches allow him to stand above and see above the fray in ways that the ordinary mortals among us cannot.

Sadly, the second response is money. He stands to make a fortune now before Mueller’s report is public and there is clamor for anti-Trump material. In this regard, Comey’s book will further diminish the sanctity of public service. We have become increasingly accepting of public servants who cash in on their offices. Whether it’s Ronald Reagan collecting millions for speaking in Japan, Bill Clinton cashing checks for over a quarter of a billion dollars for appearances since leaving the White House, or Hillary Clinton’s and Barack Obama’s outlandish speaking fees.

Indeed, Trump administration officials – Pruitt, Carson, Mnuchin, Zinke, etc. — can’t even wait until they get out of office to cash in. We should never underestimate the price we pay for monetizing public service. It breeds distrust of our governmental institutions and produces things like Trump.

So, enjoy the Comey show, but be aware that it comes at a cost.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.