Law & the Courts

The Corner

Bernie Sanders Is Correct on the Question of Replacing Comey

Bernie Sanders suggests that whomever President Trump nominates to replace James Comey as F.B.I. director should get at least 60 votes in the Senate. Procedurally and legally speaking, this is a non-starter; with his customary shortsightedness, Harry Reid made a post-nuclear bed for the Democrats, and the party must now spend some time in it. Politically, though, Sanders is correct: It would be better for America if the new director got 60 votes. It would be better still if he got more.

As a rule, there is nothing wrong with Republicans in the Senate pushing through nominees without Democratic help. That is the system now, and to decline to use it would be to unilaterally disarm. But there are two key differences in this instance that make Sanders’s suggestion a solid one. First, the F.B.I director is supposed to be — and should, by rights, be — a non-partisan figure. As such, it doesn’t matter if he’s a Republican or a Democrat or somewhere in between; unlike the DOJ or the Supreme Court, the bent that a nominee brings to the role is mostly irrelevant to his duties. Second, there is now an extraordinary degree of mistrust in our political system — mistrust that threatens to undermine the institutions on which we must rely.

As I have said repeatedly, I am skeptical of the timing of Trump’s decision to fire Comey. I don’t believe the stated reasoning either. But I am not hysterical, because there are a whole host of other explanations for the move besides “Trump is Richard Nixon.” Donald Trump is an impulsive, vindictive, chaotic man who is broadly out of his depth, and it is not beyond the realm of possibility — indeed, it seems more likely than not — that this latest foray into messmaking was merely the latest product of his caprice. Still, not everyone is me, and there are many on both sides of the aisle who are extremely worried today, and who thus need to have their suspicions and their fears allayed. What better way could there be to achieve this than by ensuring that Comey’s replacement is broadly admired and accepted? It would one thing for 52 Republicans to say, “we put in a good figure, so you have nothing to worry”; it would be quite another for them to be joined in this assessment by a collection of senators from the other side. If the Republican party is smart, it will make sure to build a coalition.

Ultimately, such an arrangement is also in the interests of President Trump. Unless there really is a massive Russia conspiracy lurking in the background — and if there is, Trump is toast anyway — it will behoove the president to put someone in place to whom he credibly point and say, “see?” A Rudy Guiliani or a Chris Christie will not be able to fulfill that role; a Joe Lieberman, a Merrick Garland, or even a Kelly Ayotte almost certainly will. It has been said by both Trump’s critics and his fans that the best explanation of his canning Comey is that he wants the cloud presented by the Russia allegations to go away. If that is true — and if he has nothing to fear — he will do well to listen to the socialist senator from Vermont.

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