I’m Not Sure It’s An Attack On Democracy

James Comey should have been fired. But Trump just committed a serious blunder.

James Comey, the director of the Federal Bureau of Investigation, arrives to testify before the Senate Intelligence Select Committee during an open hearing.

The first point to make here is that firing FBI director James Comey was completely justified. Trump-appointed Deputy Attorney General Ron Rosenstein laid out an extremely persuasive case in his memorandum on “Restoring Public Confidence in the FBI.” Rosenstein said that in the FBI’s investigation of Hillary Clinton’s emails, James Comey seriously overstepped the boundaries of his role. Comey’s role was far too public, and in both his decision to issue his own public recommendation on whether Clinton should be prosecuted, and his gratuitous commentary on the investigation (a judicious silence is the preferred stance), Comey turned the email investigation into a spectacle. Rosenstein is witheringly critical of Comey’s infamous press conference, in which Comey chastised Clinton for her irresponsibility:

The Director ignored [a] longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

Rosenstein’s memo should please Hillary Clinton’s supporters. He quotes from bipartisan legal authorities, and confirms what many Democrats have been insisting loudly since October: that James Comey’s actions were improper. Thus Democrats, many of whom believe Comey’s transgressions cost them the election, should agree that firing Comey was completely warranted and necessary, and that the Trump administration’s stated grounds for doing so were correct. If Hillary Clinton had done it, most of them would have cheered, and strongly defended the decision.

But Democrats aren’t cheering the firing of James Comey, because nobody actually believes that Donald Trump fired Comey for mishandling the Clinton email investigation. After all, since many people believe that Comey’s actions gave Trump the election, Trump should adore Comey. For Trump to have fired Comey for the reasons he said he did, Trump would have to have a high-minded and principled devotion to fairness and propriety. And since nobody can think of a single time when Donald Trump has taken an action for reasons of high-mindedness and principle, there is a near universal belief that Trump’s citation of the Clinton investigation as his reason for firing Comey is a flimsy pretext.

Instead, Trump is more likely to have fired Comey over the FBI’s ongoing investigation into possible connections between the Trump campaign and the Russian government. Politico reports that in recent days, Trump had been furiously yelling at his television whenever the Russia story came up, and may have been exasperated with Comey over Comey’s public confirmation of the existence of an investigation.

Because of that, the firing is being viewed as outrageous, possibly even a “constitutional crisis.” Trump is being compared to strongman rulers who try to eradicate all checks on their power; he is possibly even a “ruthless despot.” The Guardian reports a consensus among observers that Trump’s decision has “taken US democracy into dark and dangerous new territory.” The New Yorker’s John Cassidy calls Comey’s firing “an attack on American democracy,” and says that the incident confirms worries about Trump’s attitudes towards “democratic norms, the Constitution, and the rule of law.”

A lot of highly-charged criticisms are being leveled at Trump, and it might be good to sort them out. Is this an attack on the Constitution, democracy, and the rule of law? Is Trump becoming a dictator? Is this a usurpation or abuse of power? Well, first, we should consider what the terms involved actually imply. Terms like “democracy” and “rule of law” are often bandied carelessly about without regard to the distinctions between them. (People even use the words “democracy” and “Constitution” interchangeably sometimes, which obscures how obscenely undemocratic the Constitution actually is.) I hate to sound like a civics teacher, but let’s just be clear: the Constitution is a particular set of rules and procedures for the government, democracy is popular control of government institutions, and the rule of law is the principle that laws should be applied according to certain defined standards (consistency being foremost). So: (1) Trump violates the Constitution if he defies the rules and procedures that are specified in it (2) Trump erodes or destroys democracy to the extent that he removes government from popular control and (3) Trump contravenes the “rule of law” when he tries to keep laws that apply to other people from applying to himself, his family, and his cronies.

I swear this is not just semantics or pedantry (though I know the people who swear this the most insistently are the ones most likely to be semanticists or pedants). It has some important implications. In firing Comey, Trump has not attacked “democracy” or “the Constitution.” Under the Constitution, the president oversees the executive branch, and it is his prerogative to decide whether the FBI director is doing his job well. An argument that this decision shouldn’t be up to Trump is an argument that this decision should rest with someone other than the president. But constitutionally speaking, it’s up to the president, and Trump hasn’t ripped up the Constitution.

The suggestion that Trump has undermined “democracy” requires an even greater distortion. In fact, it’s far more undemocratic to believe that the FBI director should be independent. As it stands, the (unelected) FBI director is held accountable by the (elected) president. If the people don’t like what the president does with his FBI director, well, that’s why there’s a 2020 election. But insulating parts of the executive branch to operate on their own is not “democracy.” It may be a reduction of presidential power, which we might want, but it’s also an increase in a less accountable bureaucratic power, one made even more terrifying when it’s handed to law enforcement. The ultimate model of the “independent” FBI head is J. Edgar Hoover, who operated for decades as the controller of his own “government within a government.” This is important, because Democrats who loathe Trump may be increasingly tempted to want “independent” parts of the executive branch to put checks on his power. But that can amount to empowering the “deep state,” those parts of the government that aren’t subject to popular control at elections. And wishing that the FBI and CIA had more control over Trump may amount to wishing that a secretive unelected part of our government can wield power over the democratic part. Like or loathe Trump, at least the American people got to decide whether he would be president.

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But what about the “rule of law”? Here’s where Trump’s firing of Comey actually is alarming. Trump may not have violated the Constitution, and he may have exercised the power democratically handed to him by the voters. However, in trying to squelch an investigation into his own possible lawbreaking, Trump has undermined the idea that laws should apply equally to all. Having a two-tiered justice system, in which the powerful can simply wish away any attempts to hold them to the same standards as everybody else, creates a dangerously unequal society and can slowly lead to tyranny. Trump may not have broken any laws in firing Comey. But the “rule of law” is different than just “the application of all the laws that exist.” It is a principle for how laws ought to be. A state can have laws without having the “rule of law.” (The law might be “all justice shall be arbitrary,” for example. And while in that case we’d have law, we would have a grossly inconsistent law that doesn’t approach “rule of law” standards.) When Trump tries to limit the enforcement of laws against himself, he undermines that standard.

At the same time, this doesn’t make Trump a “dictator.” And if people are convinced that Trump has become a “dictator” or an “autocrat,” they may actually fail to see that firing Comey was a foolish blunder on Trump’s part, rather than a successful seizure of power. In trying to get rid of the Russia investigation, Trump has drawn far more attention to it and made himself look guilty, and now he might face bipartisan calls for an independent special prosecutor.

It’s actually kind of funny that nobody in the administration was able to convince Trump not to do it. Any sensible adviser would have pleaded with him: “Mr. Trump, I know you’re angry with Comey, but you can not fire him. I know you want the Russia story to go away, but this will instantly make it ten times worse, because it will look as if you are trying to hide something.”

This is exactly what happened. Hardly anybody believes the “Clinton email” justification, which would require us to think Trump felt Comey was unfair to Clinton. Instead, they think he is trying to cover something up. As John Cassidy writes:

Until the White House comes up with a less ludicrous rationalization for its actions, we can only assume that Trump fired Comey because the Russia investigation is closing in on him and his associates, and he knew that he didn’t have much sway over the F.B.I. director. That is the simplest theory that fits the facts.

Importantly, this is not the “simplest theory that fits the facts.” It is one of two competing simple theories. The other theory is that Trump fired Comey because he feels about the Russia investigation the same way that Clinton felt about her email investigation: that it’s a bunch of overblown nonsense, and that Comey is helping keep a B.S. non-scandal afloat through his irresponsible overzealousness. In fact, from Politico’s account, this is what Trump himself seems to have conveyed within the White House.

So it could be, as Cassidy says, that Trump knows Comey was closing in on some devastating truth. But it could also be that there isn’t any devastating truth, and that Trump simply became frustrated that Comey seemed to be getting too big for his britches, assuming an outsized amount of power relative to the president. In fact, one can easily imagine Trump eating nachos while watching Fox News, bellowing “Why is Comey on television again? I’m the one who’s president!”

Cassidy is right that “Trump is scared because the investigation is getting closer to the truth” is the most logical explanation if we assume that Trump is a rational actor instead of a petty, tantrum-throwing child. But it could be that Trump wasn’t so much “scared” of the Russia investigation as infuriated by its persistence. Now, though, because he couldn’t calm his temper enough to let Comey do his job and conclude the investigation, Trump is going to face an investigation that drags on even longer. And if it does turn out that there’s nothing to the story, this will be a hilarious display of incompetence. In firing Comey to get rid of the Russia investigation because he thinks it’s a non-story, Trump may have made it a far more important story and caused Republicans to think of it as something legitimately suspicious rather than just sour grapes from Democrats.

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As people have pointed out, the closest parallel to the Comey incident is Richard Nixon’s infamous Saturday Night Massacre, in which Nixon ordered the firing of the special prosecutor assigned to investigate Watergate. But people are using this to show that Trump, like Nixon, tried to escape the scrutiny of ordinary law enforcement. Trump, they say, is showing Nixonian autocratic tendencies.

But people should also remember what happened after the Saturday Night Massacre. Needless to say, things did not actually end very well for Richard Nixon. Nixon’s firing of the special prosecutor led to a massive increase in public support for Nixon’s impeachment; a week after the “massacre,” for the first time, a plurality of Americans believed Nixon should be removed from office. The firings were a blunder, born of the president’s delusion that he could do anything.

That may well be what we have here. It’s not an attack on democracy, it’s not the shredding of the Constitution. It’s a legal, but stupid and disastrous, attempt at self-aggrandizement. Trump hasn’t managed to make himself a dictator. Instead, he’s just made people think he’d like to be one, and has made the same mistake that ultimately brought down Richard Nixon. Nixon believed that because he was president, he could act as pleased without regard to political or legal consequences. This was not the case. Donald Trump may well learn a similar lesson. 

Author: Nathan J. Robinson

is the editor of Current Affairs.