Two Dead Canaries in the Coal Mine

If you're inclined to downplay the termination of FBI Director James Comey, reasoning that he was a flawed leader, or that President Trump was legally entitled to fire him, or that many of the Democrats objecting to his termination previously criticized him, or that liberals are so freaked out by the president that their latest freakout cannot be taken seriously, a civil libertarian like me is unlikely to change your mind.

Long before Donald Trump decided to run for president, when Barack Obama had almost a full term left and Hillary Clinton seemed like his likeliest successor, I argued in “All the Infrastructure a Tyrant Would Need, Courtesy of Bush and Obama,” that “we're counting on having angels in office and making ourselves vulnerable to devils. Bush and Obama have built infrastructure any devil would lust after.”

I listed the numerous policies and precedents that warranted great concern.

And yet, I wrote, “The American people have no idea who the president will be in 2017. Nor do we know who'll sit on key Senate oversight committees, who will head the various national-security agencies, or whether the moral character of the people doing so, individually or in aggregate, will more closely resemble George Washington, Woodrow Wilson, FDR, Richard Nixon, Ronald Reagan, John Yoo, or Vladimir Putin.”

Today, the president of the United States, Donald Trump, has expressed admiration for the strength of Vladimir Putin, the Chinese leaders behind the Tiananmen Square crackdown, and the strongman who runs the Philippines. After Trump’s rise, but before he was elected, I again urged Obama, and House and Senate Republicans who faced the possibility of a Hillary Clinton presidency, to “Tyrant Proof the White House––Before It’s Too Late.” Elected officials failed to take action.

So I am predictably alarmed that Trump will now be naming his own pick to run the FBI. But that’s no surprise, and presumably unpersuasive if you weren’t with me already.That’s why I want to introduce you to Benjamin Wittes, who almost always disagrees with me and other civil libertarians, downplaying the possibility of government abuses.

Over all the years that I’ve been sounding alarms about drone strikes and NSA surveillance, Wittes has retorted that civil libertarians like me are being unduly alarmist. During a debate on lethal drone strikes at the University of Richmond, when I urged a moratorium, Wittes took the lectern and mounted an emphatic defense of drones. When Edward Snowden revealed mass surveillance on U.S. citizens, sparking alarmed calls from civil libertarians like me for sweeping NSA reforms, Wittes insisted that the professionalism of NSA staffers and existing checks within the executive and legislative branches were sufficient to protect Americans.

This man is as informed as anyone about the workings of the national-security bureaucracy and federal law enforcement. And his predisposition is nearly always to trust it.

So I’d never choose Wittes to serve as my canary in a coal mine. I’d be afraid that he would somehow manage to keep chirping merrily even as all the miners had suffocated. But for those inclined to use heuristics to determine when to worry, Wittes is very useful. If even he is alarmed at the potential for abuse, everyone should be alarmed.

Let us now delve into his thinking on Comey.

Last spring, when I urged Obama to tyrant-proof the White House, to the extent possible, before his successor was sworn in, Wittes didn’t abandon his bygone positions. He maintained that concerns about drone strikes or mass surveillance were silly. But he did add, “There are, to put it mildly, more proximate concerns.” It was like the scene in Butch Cassidy and the Sundance Kid where bounty hunters chase the outlaws to the edge of a cliff above a river. Sundance doesn’t want to jump. He can’t swim. “Are you crazy?” Butch retorts. “The fall will probably kill you.”

So what finally worried one of Washington, D.C.’s most consistent critics of civil libertarians?

Here’s what:

Let me be blunt: The soft spot is not NSA and it's not the drone program. The soft spot, the least tyrant-proof part of the government, is the U.S. Department of Justice and the larger law enforcement and regulatory apparatus of the United States government. The first reason you should fear a Donald Trump presidency is what he would do to the ordinary enforcement functions of the federal government, not the most extraordinary ones…

A prosecutor—and by extention, a tyrant president who directs that prosecutor—can harass or target almost anyone, and he can often do so without violating any law. He doesn't actually need to indict the person, though that can be fun. He needs only open an investigation; that alone can be ruinous. The standards for doing so, criminal predication, are not high. And the fabric of American federal law—criminal and civil law alike—is so vast that a huge number of people and institutions of consequence are ripe for some sort of meddling from authorities. A template here is how former Virginia attorney general Ken Cuccinelli was able to harass climate scientists he didn't like. This stuff is not hard to do, and you don't even need to win to succeed.

The Justice Department has some institutional defenses against this sort of thing, but they are far weaker than the intelligence community's institutional defenses against abuses. They mostly do not reside in statute or in the sort of complex oversight structures that Granick complains in the case of NSA are not restrictive enough. They reside in the Levi Guidelines, in certain normative rules about contacts between the Justice Department and the White House, in norms that have developed over the years in the FBI. And they reside in the hearts of a lot of replaceable people. Ultimately, they reside in an institutional culture at the Justice Department, and that is precisely the sort of thing a tyrant leader can change.

Wittes went on to sketch what a would-be tyrant would need to do to effect that sort of change. “He would need to appoint and get confirmed by the Senate the right attorney general,” he wrote. “That's very doable.” Indeed, we now know his name: Jeff Sessions.

Finally, Wittes wrote, “Trump might develop a problem with our redoubtable FBI director, who doesn't leave with the outgoing administration and has stared down a president before. But so what? Bill Clinton didn't get along with his FBI director either. Comey will not be there forever anyway.” Here we are mere months into Trump’s term.

And Comey is already gone.

* * *

Just after election day, Ben Wittes and Susan Hennessey cowrote a post at Lawfare, the web site Wittes runs for the Brookings Institution, titled “We Need Comey at the FBI More Than Ever.” It began by acknowledging that Comey was unpopular among many Republicans and Democrats, then made a case for retaining him in his post:

Whatever you think of Comey’s judgment or conduct during the campaign, his actions have unequivocally demonstrated political independence from his political bosses, as he has in the past. And that is exactly what we will need from the FBI in the coming years. Throughout his career, Comey has stood up to the political leadership of both parties. During the Bush administration, he offered to resign over questions of law and principle.

If the last few weeks demonstrate anything, it is that we can trust him to speak his mind irrespective of the political consequences; in fact, the harshest charge against him is that he cannot be trusted to not speak his mind, even when it might behoove him and when doing so might undermine the fondest wishes of those in power. If you believe, as we do, that this country has elected as President a dangerous man, one with authoritarian tendencies, having a principled FBI Director willing to stand up to those in power and speak his mind irrespective of political costs is critical.

Trump has the authority to fire the FBI Director, even without cause, though it goes against custom. But if Trump is a serious leader, interested in maintaining the credibility of his presidency, he won’t. Since J. Edgar Hoover left office, only a single FBI Director has ever been fired. A few months after taking office, Bill Clinton fired Reagan-appointee William Sessions over alleged ethical violations. Those allegations were laid out in a report endorsed by the Republican Attorney General before Clinton took office, but Sessions refused to cede to pressures to resign. Notably, Clinton went on to appoint Louis Freeh as FBI Director, who had a notoriously oppositional relationship with the White House.

In short, while it is technically within the presidential power to fire an FBI Director, it is not something anyone should perceive as normal. Were Trump to fire Comey it would be a serious aberration; if he were to do so for mere political preference, in retaliation for Comey’s professional judgment that Clinton should not be prosecuted, or out of fear of Comey’s independence it would strike a blow against an important check on the modern presidency. And nobody who believes in the rule of law, even those most angry at Comey, should be hoping for it right now.

In fact, for those concerned that President Trump will trample the rule of law—liberals and conservatives alike—Comey’s fate is one potential canary in the coal mine.

That canary is now dead.

* * *

That brings us to one final Ben Wittes and Susan Hennessey article. Its title: “The Nightmare Scenario: Trump Fires Comey, the One Man Who Would Stand Up to Him.”

Published this week, it states:

The situation has no parallel with the only previous FBI director to be removed by a president: President Clinton’s firing of William Sessions, whose ethical misconduct was so extensive that it resulted in a six-month Justice Department investigation and a blistering 161-page report detailing his illicit activities, including flagrant misuse of public funds. Trump’s firing Comey at a time when Comey is investigating Russian intervention in the election on Trump’s behalf and the specific conduct of a number of people close to Trump undermines the credibility of his own presidency. And it deeply threatens the integrity of and public confidence in ongoing law enforcement and intelligence operations.

Trump’s offered rationale does nothing to assuage the fears we expressed in November regarding the meaning of this event.

What follows is a lengthy, devastating account of why the reasoning offered by the Trump administration is not credible. Since that is evident to anyone paying close attention––and raises the question, what is the real reason that is being kept from the public?––better to skip down a bit farther. As they point out, firing Comey removes the person running the Russia investigation, “the guy who, in February, reportedly refused the White House’s request to publicly knock down stories about Trump and Russia while congressmen in key positions of investigatory responsibility allegedly complied.” It removes “the essential person for a credible investigation.”

That is alarming whether or not Trump himself is guilty of any wrongdoing.

Will Trump get away with “a horrifying breach of every expectation we have of the relationship between the White House and federal law enforcement”? The authors call on the Senate to use all the tools at their disposal to check the Trump administration.

And they conclude:

The immediate concern is to ensure that the integrity of the Russia investigation, and all associated investigations, is preserved. We have not previously called for a special prosecutor, believing that Rosenstein was a person of integrity who should be given a chance to make a call on that question. His performance today, however, requires that he now step aside.

Assuming that he acted with sincerity ... he has still participated in a tawdry episode that will—and should—raise profound questions about the administration’s commitment to a fair and independent investigation of matters that touch the deepest of national security concerns. He cannot credibly lead this investigation any longer, and leaders of both parties must make sure he steps aside for an independent prosecutor who can. The broader concern is the protection of the FBI. Because removing one FBI director means installing another. Whomever Trump chooses for the role needs to go through the most exacting scrutiny to make sure that the director’s office—and the Bureau more generally—is not now the subject of White House control and a mere instrument of political whim.

For once, Wittes and I agree.

Every so often, a canary in a coal mine must have died of natural causes. But circumstances being what they were, the prudent course was never to presume a benign explanation. Common sense and self-preservation called for presuming the worst. This is not a time that affords the luxury to wait and see what Trump does next, or who Trump appoints to be the next Director of the FBI. This is a time to act.

It is a time for Congress to force a special prosecutor.

It is a time for the Senate to use every tool at its disposal to investigate Trump and his associates, and to conduct zealous oversight of the agencies that he now leads.

It is a time for citizens to tell their senators that guarding the rule of law against encroachments from this president should be their highest priority, and that they will be held responsible if they vote to confirm an FBI director who abuses his or her power.

Ask any Trump ex-wife, creditor, or subcontractor if he deserves to be given the benefit of any doubts. His entire life suggests the answer is no. Americans should start acting like it.