Debate: James Comey Is The Hero Washington Deserves
November 1, 2016 (Fault Lines) — Ed. Note: In light of the reaction to FBI Director James Comey’s letter to Congress regarding the trove of Hillary Clinton emails discovered on Anthony Wiener’s computer, Andrew King and Josh Kendrick have been pressed into service to debate the following: Should Director Comey have sent the letter to Congress or waited until after the election? This is Andrew King’s argument:
Nassim Taleb remarked that many are virtuous for lack of opportunity. He wryly observed that public virtue is really just marketing. In those real, few moments where virtue is demanded, most of us falter. We know this, which is probably why those among us that rise to meet those moments get medals, immortalized in story, or are canonized.
Of course, some become a martyr, which is not usually earned with a weekend at the spa. More common are the tragic stories where we fail and bring ourselves to varying degrees of ruin by our own hand—pick any Shakespearean tragedy. Fortunately, most of us fail relatively privately, as we are anonymous to the billions of other people on Earth.
Public officials, on the other hand, do not get the same luxury. Except for those politicians that sing their own praises, their moments of true virtue are mostly private. Failure is another matter. Those that make a spectacularly wrong call find themselves compared with the likes of Neville Chamberlain. Not the sort of company one wants to keep through the ages.
You may be aware that Hillary Clinton is running for President. Her husband famously had issues with cigars and interns. And, as the First Lady, she had plenty of her own scandals. They then left the White House poor and set about making themselves famously wealthy by peddling influence through a charitable front, named, not surprisingly, the Clinton Foundation.
Yet, for reasons altogether unclear, Hillary was bound and determined to become President. So, she took a bunch of resume building jobs, waiting first for the cowboy Republican to be term limited out of the job, then the unknown guy from Chicago to do his eight years. Meanwhile, Hillary got herself into some more trouble, most acutely regarding her emails. It was a thing that the feds looked into and said “Meh.” So, it was smooth sailing to her dream job, until the mean old FBI Director, Jim Comey, popped back up.
You see Comey blew it the first time. He concluded that she was extremely careless, rather than grossly negligent, as the statute requires. Comey earned applause from the “too big to brig” crowd. It didn’t matter to these folks that a public official quite probably committed a crime. What mattered was the election—oh yeah, and the Republic. These folks would happily elect Senator Palpatine, so long as the people’s voice was heard at the ballot box. As if the person can be completely divorced from the election or the office. Let the heavens fall so long as we maintain the façade of a constitutional republic.
Also, Comey blew it because he concluded that “no reasonable prosecutor would bring the case.” That’s neat. Perhaps Comey sets the lineup for Terry Francona. Deciding what a prosecutor would or would not do is not his job. Certainly law enforcement officers enjoy some discretion when deciding to file charges, but they certainly shouldn’t be in the business of not pursuing a case because they imagine it would be a tough case. In fact, officers are usually oblivious to that aspect of getting a conviction, unless educated.
Comey has an excuse. His boss, the Attorney General, had met with Bill Clinton in an airplane on a tarmac. No doubt they exchanged their famous recipes. In all likelihood, Comey saw the writing on the wall. His boss was going to decline to prosecute, and he didn’t want to be left without a chair when the music stopped.
Comey blew his moment and got called a weasel for messing the bed. There are times when you simply have to make the best choice among some terrible choices. Superman didn’t really want to kill General Zod, but it was the best choice among two terrible ones. Comey, while enjoying a ten-year term as Director, could have made the right call and left his boss to make the wrong one. But he didn’t. Quite likely he wrapped himself in God, duty, country when placing himself on the winning side, but having good rationalizations is not the same thing as making the right call.
All is well that ends well, until one day some poor analyst has the misfortune to handle Weiner’s hard drive. As the analyst is looking through the data for evidence of underage girls getting involved with Weiner, the analyst starts finding emails between Huma and Hillary. We don’t know if the analyst stopped at this moment but probably not. It probably wasn’t until the analyst read something that made him (or her) push the screen away and to frantically start looking for a supervisor. The fact the Comey chose to make the emails public suggests that he has an idea what they say. Otherwise, he’d unnecessarily self-immolate again.
Now, Comey was faced with another tough decision. He could either ignore evidence that could inculpate Clinton, or he could ever so slightly re-open the investigation he closed. This is the problem with not making the hard but right decision in the first place. When it comes back up, you double down or you acknowledge you may have screwed the pooch. It’s easier to go along, at least until you are discovered with 22 minutes of missing audio tape, and you’re forced to resign. Comey chose to crack the investigation back open and inform Congress of that.
And then the world really, really, really, really hated Comey. Nearly all, save one plucky Admiral, were joined in shared hate of Comey. The group of people that thought he made the right call the first time now feel betrayed. And the group that felt betrayed at his first call, now doesn’t find him trustworthy. Comey only needs a ghost, a skull, and a soliloquy to make this a real tragedy.
The too big to brig crowd wants Hillary to get special consideration because she’s somebody important. Her husband made that argument and lost, much to the distaste of Judge Posner. Frankly, if the system is so fragile it cannot withstand the investigation and possible prosecution of a major political figure, then it deserves to break. Justice is reduced to an empty platitude when poor black urban dwellers get destroyed by the criminal justice system and a rich, well-connected, Ivy League, white woman gets a pass. Why wouldn’t everyone want this wonderful legal system?
And just stop it with the Hatch Act nonsense—looking at you Senator Reid. When political people commit crimes, it’s going to be political. Ignoring these crimes would simply encourage more corruption and wrongdoing. Under this theory, mafia dons should get a get-out-of-jail-free card by seeking political office. The same people that worry about Russia influencing the election are often the same ones advocating the Russian way of governance. But as long as their preferred candidate wins, what difference does it make?
Same too with this gentlemen’s agreement nonsense. Gentlemen shot themselves in pistol duels, leading you to question the basis of this pile of cow manure. Criminal prosecutions effect lives, corporations, businesses, and governments. Certainly we cannot be suggesting that if the crime or criminal is so severe as to impact, possibly negatively, many people and jurisdictions that we should refuse to prosecute it. Most of the world happily prosecuted Nazis and their conspirators after the war without concern of whether it would be gentlemanly to give so many people vapors.
Then there are those who are suddenly very worried about the institutional credibility of the FBI. Give me a break. They survived Hoover’s domestic spying, Soviet moles, and blown opportunities like stopping 9-11. No one that isn’t drunk on partisanship doesn’t believe that investigating a potential crime because of new potential evidence is going to hurt a law enforcement agency. And it’s not like former AGs for the other team don’t have contrary thoughts. Ditto for the argument that there is too much transparency. Let’s do away with FOIA, government mandated labeling, SEC and FEC disclosures, and public courthouses.
All these vapid talking heads bring to mind the following quote by Jonathan Swift: “When a true genius appears in the world, you may know him by this sign, that the dunces are all in confederacy against him.” Comey is neither a genius nor a paragon of virtuous decision making. Especially because when you make the wrong but easy call the first time, you don’t get extra points for making the right and harder call the second time. But Comey should get credit for making the right call, albeit belatedly. And those dunces in chorus condemning him should stop lowering society’s intelligence.
Rebuttal: Mad Men character Don Draper was found of saying “If you don’t like what they are saying about you, change the subject.” Talking about Comey informing Congress is an effort to change the subject. It’s a tissue thin excuse to say that Hillary should retain privacy when doing dirty. Aside from her very public status, people accused of wrongdoing are subject the same sorts of public scrutiny.
Law enforcement typically refrains from talking about current investigations not so as a courtesy to the accused, rather to avoid interference in their investigation. News organizations do sometimes report on uncharged conduct, particularly if they can avoid a libel suit. See e.g.. Bill Cosby. And neither wants to be part of the next Richard Jewel debacle.
The way to avoid the spotlight was easy; don’t erase emails subject to a federal subpoena. It’s not Comey’s fault Hillary made this into a big story.
Sur-Rebuttal: Josh takes me to task for bringing up the inequities of regular sorts of defendants compared to Hillary. It was not a call to treat everyone unduly harsh. Rather, I am saying that everyone should be treated more or less the same regardless of whether the system is unduly harsh. Otherwise, it’s conflating to different concerns and criticisms.