Comey Exemplifies the Effort to Get Stupid

By | 2017-12-06T15:04:09+00:00 December 6th, 2017|
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Former FBI Director James Comey is tweeting about justice and liberty. He accompanies his tweets with creepy selfies, and the context suggests he is colluding with his conflicted friend, Special Counsel Robert Mueller, in spirit if not in practice.

Opinion columns heralding the intensification of Mueller’s investigation now flow like mighty rivers carrying with them a new toxic debris: in place of the once vaunted “Russian collusion” is now the paltry charge of obstruction of justice.

We all know the Left’s narrative. When President Trump asked Comey if he could go easy on Flynn for lying to the FBI and then subsequently fired Comey, Trump sought to impede an investigation that has a life independent of the president’s authority as chief executive.

It is a new low for American propaganda, and more than that, it is just stupid. There is no federal police force that is independent of the power vested in the president.

“The executive power shall be vested in a President of the United States of America.”

The design of the Constitution is to install energy in the executive by vesting the power to execute the laws and to defend the country in a single person who, being elected every four years and removable by Congress, is answerable to the sovereign (that is, the people) through the political process of elections.The FBI cannot have that kind of accountability to the sovereign, so it cannot and does not have that kind of power.

The executive duty is embodied in the oath of office: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

That office includes the power to enforce the law and, in specific cases, not to. The president has the power: “to grant reprieves and pardons for offenses against the United States.”

The president has the power to “nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.”

The president then exercises the power vested in him through these departments. They are meant to be the president’s utensils. That’s right, ex-director Comey, you were a tool, always, an agent for a principal, who sought to arrogate to himself the power of a principal.

Nearly as soon as Trump was elected president and began appointing his principal national security team, Michael Flynn was interviewed by the FBI regarding calls he made to the Russian ambassador as part of the transition in power from one elected president to another. Although Flynn apparently broke no laws in speaking with the Russian ambassador, Flynn evidently lied in that interview, and the FBI knew it, because the FBI had access to transcripts collected through espionage conducted against the incoming president and his team.

The office of the president is the first public office Trump has held, and the steep learning curve—something everyone expected—was evident early on. Trump openly and frankly sought Comey’s counsel. Allowing himself to harbor a deep prejudice against Trump, the former director betrayed him from the outset. But Comey didn’t merely betray Trump. Along with Trump, he betrayed the very idea of elections and thereby, the sovereignty of the people who elected him.

In seeking Comey’s counsel, the new president asked him if he could go easy on Flynn because he was a “good guy” who had served his country. This was an entirely sensible thing to ask. Political life in United States has become a savage sport of destroying political enemies, and as such discourages good people from serving. Prosecuting Flynn for naively sitting for an interview with the FBI that was designed to trap him seems a bit much under the circumstances.

While no one can say for certain why Flynn lied about his contact with the Russian ambassador after the election, it seems just as likely as not that Flynn simply misremembered it or misspoke since there was nothing at all illegal about the contact. The FBI, of course, did not tell him that it had a transcript because, among other things, the fact that the intelligence apparatus was spying on the Trump transition would have changed the posture of the new administration toward the FBI—and deservedly so.  

If the FBI cannot be trusted, if its agents’ questions were designed to trip up the interviewees and provide a basis for their prosecution, then members of the administration cannot—should not—speak to them. It is a sacred thing not to be compelled to serve as witnesses for one’s own prosecution.

Exercising the discretion not to prosecute Flynn would have had two beneficial effects: it would have fostered trust and openness between the FBI and the incoming administration and it would have reduced the level of discouragement good people feel about serving their country in that agency which, evidence now suggests, has become ensnared in partisan political operations.

President Trump concluded after several interactions with the increasingly contumacious Comey that he could not work with him. And so President Trump fired Comey upon the recommendation of Assistant Attorney General Rod Rosenstein.

It is simply unintelligent to suppose these facts taken together add up to a serious charge of obstruction of justice.  Rather it is the president, an elected officer, doing his job to control the unelected bureaucracy.

The cries of obstruction of justice disguise the growing—and ultimately servile—impulse to subordinate elected power to unelected power. This impulse—this yearning to get stupid—is beneath the dignity of a free people.

About the Author:

Jay Whig
J. Whig is an attorney practicing in New York and a resident of Connecticut specializing in insolvency and restructuring. Opinions are his own.