Politics & Policy

On the Limits of Loyalty

FBI director James Comey on Capitol Hill in March (Reuters photo: Joshua Roberts)
What Comey owed Trump is honesty, nothing more or less.

‘Jumped the shark” is an overused expression straight out of 1970s situation comedy. It is the most charitable interpretation of the moment President Donald Trump pressed “Tweet” on Friday morning. After nearly four months of the once jaw-dropping novelty of presidential tweeting (the equivalent, in dog years and media exhaustion, of five sit-com seasons), the routine has grown stale, the former reality-TV star apparently out of “don’t touch that dial” ideas.

So, while his staffers fanned out to douse overheated media-Democrat Watergate analogies to his firing of FBI director James Comey, the president was on social media suggesting that he might be recording his conversations in the White House:

Is there a Rosemary Woods for Twitter?

Alas, this was not the only piece of bizarre Trump-Comey news. It was reported by several media outlets that the then-director was summoned to a late-January dinner at the White House, where Trump pressed him for a loyalty pledge. Comey is said to have demurred, promising the president nothing more, or less, than honesty. If it happened, and happened that way, Comey is to be lauded for giving one of the only two appropriate responses. The other would have been to resign.

The story is disputed: Comey’s side of it comes from secondhand sources. For his part, Trump told NBC News that it was Comey who wanted the meeting so he could lobby to keep his job — although Trump became non-committal when asked whether it was he or Comey who initiated the dinner invitation.

Trump further maintains that the dinner was the first of three times that Comey assured him that he was not under investigation. To be clear (as National Review explains in an editorial): Comey has testified that the FBI was conducting a counterintelligence investigation of Russia’s meddling in the election. Though he said the investigation is exploring ties between Trump associates and Russia, a counterintelligence investigation is not a criminal investigation.

There is thus no reason to believe that the president is or has been the subject of a criminal investigation, even though Trump can’t seem to help himself from raising that specter. The president also reloaded and shot himself in the other foot, telling NBC that Comey’s pursuit of the Russian meddling probe did, in fact, influence his decision to fire Comey. Trump made clear that this is because he sees the investigation as baseless, not because he has anything to fear. Still, this new version of events contradicts the White House line from days earlier: viz., Comey’s termination was based on his deviations from law-enforcement protocols and had nothing to do with Russia.

It is the latest in a series of depressing chapters. Most pressingly, it will be more difficult now for the president to recruit a highly respected, instantly credible law-enforcement pro — a Ray Kelly type, to my mind — to replace Comey.

For all the drama and missteps in the Clinton e-mails investigation that will stamp his tenure, the fact is that Comey leaves big shoes to fill. There is a lot more to the job of FBI director than a single case, no matter how defining. The former director was good at all of it — as Heather Mac Donald reminds us in a City Journal column, recounting Comey’s championing of the nation’s police despite headwinds from his Obama-administration superiors. The police still need a champion in the FBI director, and Trump will be hard pressed to find one if he simultaneously demands fealty and acts erratically.

Anyway, how much loyalty does the FBI director owe the president?

This is not a question unique to the age of Trump. President Obama was rumored to have asked Comey whose side he was on when they tangled over such matters as the “Ferguson Effect” and the role of radical Islam in the San Bernardino jihadist attack. To widen the scope beyond the FBI: Attorney general Loretta Lynch’s confirmation-hearing testimony featured an excruciating defense of Obama’s indefensible rewrite of Congress’s immigration laws. In the George W. Bush years, attorney general Alberto Gonzales was forced to resign when Democrats claimed he was elevating partisan politics over law enforcement.

It will be more difficult now for the president to recruit a highly respected, instantly credible law-enforcement pro — a Ray Kelly type, to my mind — to replace Comey.

The loyalty question is not cut and dried. The president is the chief executive. There is no law-enforcement exception to this arrangement. Every executive-branch official, including the FBI director and the attorney general, is subordinate to the president. The president is in charge of executive-branch policy — of setting administration priorities for crime-fighting, intelligence-gathering, and much else. The FBI director does owe the president obedience in carrying out these priorities — just as FBI agents are bound to follow their director’s orders even if they privately question the prudence thereof. If the president decides that terrorism is the top of his agenda, the FBI director does not get to say he’s going to prioritize, say, health-care fraud.

There is a big difference, though, when it comes to the enforcement of law in particular cases. The FBI director, like all law-enforcement officers, takes an oath to uphold the laws of the United States. It is not a loyalty oath to the president. The rule of law demands that enforcement decisions be made based on what the Constitution and congressional statutes dictate, not on political considerations.

As a rule, the White House should not intrude in the conduct of investigations. Of course, there are exceptions. The pursuit of some cases might, for example, negatively impact foreign relations or national security. If a meritorious prosecution could touch off a crisis overseas or expose a life-saving intelligence operation, the president may have to kill it — especially if the executive-branch departments with skin in the game are divided on what should be done. That, however, is the extremely rare case. By and large, once enforcement priorities are set, politics should be walled off from investigations, which should go wherever the evidence leads.

Of course, this framework does not change the fundamental fact that the president is the FBI director’s superior. Insubordination is not an option. But obedience does not supersede more-essential duties. If a president gives a director an order that amounts to politicizing law enforcement or violating the law, the director should refuse to comply and resign if the president won’t reconsider. For a president to politicize law enforcement or intelligence-gathering is an impeachable offense; it would be intolerable for an FBI director to abet it.

Last point from here on my soapbox: The statutory ten-year term for the FBI director ought to be scrapped. It is not a real ten-year term anyway: The president is not bound by it and the director is free to retire at any time. Contrary to popular belief, the term is not designed to give a measure of independence to the director. Congress’s objective was to ensure that there never be another J. Edgar Hoover, who reigned for over 40 years. The term is intended to be a maximum, not a minimum. And even as a maximum, it is illusory: In 2011, when director Robert Mueller’s term was about to expire, President Obama had no trouble persuading Congress to extend it for two years.

The FBI director’s status should be no different from that of the attorney general, the CIA director, and other top national-security officials. Particularly in a time of terrorist peril, these positions are of tremendous policy-making consequence. Since the president is ultimately responsible for policy, he should be free to appoint his own preferred nominees, subject to the Senate’s constitutional advice-and-consent check.

This would not prevent a new president from retaining the incumbent FBI director (just as the president may retain other executive-branch officers from the prior administration). It would, however, establish the presumption that the president will choose a director, rather than be saddled with one the president would prefer not to have.

The replacement of an FBI director should be routine. It should not be fraught with intrigue over whether the president is under investigation or whether his removal of the incumbent director is sinister.

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