James Comey is a threat to your civil liberty. Writing in the Washington Post on Tuesday, the former FBI director described the Department of Justice as “separate and apart” from the authority of the president and maligned Attorney General William Barr for allegedly “intervening” in the Roger Stone case.
Comey’s claims are as perverse as they are unmoored from reality. Here’s how.
According to Article II, Section 1 of the Constitution, “The executive Power shall be vested in a President of the United States of America.” This means the president is the chief law enforcement officer of the United States.
The Department of Justice is not even responsible for the whole of law enforcement under the executive branch but only a part. For example, the Department of Homeland Security, as successor to the Department of Treasury, handles key aspects of law enforcement in matters related to counterfeiting.
Even the Department of Justice’s name is deceiving (perhaps they should have stuck with Law Department). The Department of Justice is not the locus of legal justice under the Constitution. That’s the judiciary, which under Article III of the Constitution actually is separate and apart.
How the judiciary produces legal justice is important for understanding what the Department of Justice is and is not.
We have an adversary system in the United States. The adversary system has its origins in the medieval Ordeal, trial by combat, and then trial by combat of champions on behalf of the accuser and accused. Trial by combat with champions eventually evolved into a contest of words by attorneys representing the accuser and accused.
In basic outline, there are two parties to a case, which is why litigations, criminal and civil, are styled as one party versus another: Marbury v. Madison, United States v. Roger Stone, and so on.
It is axiomatic that neither of the two parties in a case stands for the objective truth of the matter. Each is an advocate for one side only. The advocates clash before a member of the judiciary, i.e., a judge. From that contest of biased advocates, the truth is supposed to emerge allowing the judge and jury to render impartial and unbiased justice.
The Department of Justice, in our adversary system, represents only one point of view in a case, that of the United States.
Comey writes with trademark vanity that when people join the Department of Justice they receive a gift:
It is a gift they might not have noticed until the first time they stood up and identified themselves as a Justice employee and said something—whether in a courtroom, a conference room or at a cookout—and found that total strangers believed what they said next.
A cookout? Setting aside that this insufferable man may have been lording himself over friends on Independence Day, at the outset of any criminal case, the Department of Justice is not to be believed. The judge is not supposed to believe the Department of Justice. The jury is not supposed to believe the Department of Justice. You are not supposed to believe the Department of Justice.
It is the accused who is presumed innocent.
The Department of Justice is not to be believed in a criminal case until it proves its case beyond a reasonable doubt on the basis of constitutionally obtained evidence.
This is a fundamental tenet of your civil liberty that Comey blithely disrespects.
Sure, as licensed officers of the court, attorneys of the Department of Justice have a duty of candor, but that is no different or more special than the duty of candor of all attorneys. Working for the government does not make Department of Justice attorneys better, smarter, or more virtuous than their peers in the private sector.
A government lifer, Comey clearly believes otherwise. This is what Shakespeare condemned in Hamlet as “the insolence of office.” Comey, no longer an officeholder, has managed to portage a boatload of insolence of office into his private life of writing for the Washington Post.
Comey says the Department of Justice is supposed to be blind. It is not. Justice is blind; the Department of Justice is a team of biased advocates who argue on behalf of the United States. I do not say this disparagingly. That is their job, and many of them are very, very good at what they do. But forgetting that and elevating Department of Justice attorneys to impartial arbiters of objective truth corrupts our adversarial justice system.
Faithful and competent execution of the office requires the president as a matter of practical necessity to carry out his responsibilities through the departments, including the Department of Justice. Prosecutions are in most cases best administered by line attorneys who are merely doing their jobs. In the event, however, that the president, directly or through one of his cabinet members, in good faith perceives a miscarriage of justice by or corruption in a department carrying out his executive responsibilities, and acts upon it, this should not disturb anyone. It is his duty to intervene to correct the miscarriage and to root out the corruption. Don’t let James Comey tell you otherwise.