By Frank Bowman
Young lawyers become prosecutors because they want to be the good guys. They want to become the only kind of lawyer whose obligation is not to promote the interests of sometimes morally compromised clients, but only to seek the truth and do justice. They also quickly understand that with the mission to seek justice comes immense power — to expose evil, to root out corruption, to protect the weak, to vindicate the wronged. Young prosecutors who make it a career begin to see themselves as members of a kind of warrior priesthood, paladins of light in an ethically murky and sometimes blackly malign world.
I know this because many years ago I was one of the young postulants of this priestly caste, and I spent fourteen of my seventeen years in practice as either a state or federal prosecutor before becoming a teacher. As corny as it may sound, in some deep place I remain a member of my old order. I honor its mission. I cherish its traditions and unwritten codes.
But those who truly understand what it is to be a public prosecutor in the American democracy recognize that membership in the order comes at a price, and accompanied by a particular set of risks.
The price is two forms of self-denial. First, a commitment to relative asceticism — career prosecutors can certainly live a comfortable middle-class life, but so long as they remain in government, they will never see the vast riches of elite private practice. Second, but more importantly, prosecutors must abide by a set of professional norms that elevates the pursuit of justice, respect for individual rights, and protection of the justice system over personal fame.
As a federal prosecutor, you are empowered to hunt those suspected of crime, but you are obligated to wield the immense resources at your disposal with restraint and in strict accordance with the rules. You are granted many tools to unearth evidence, but you must analyze what you find dispassionately. While an investigation is ongoing, you may not speak about its details publicly, no matter how high-profile the target and how intense the interest of the public, the press, or elected politicians.
You are commissioned to prosecute the guilty, but may not ethically subject anyone, however dodgy you personally may think them, to the risk of criminal conviction unless you believe the evidence proves guilt beyond a reasonable doubt. Therefore, if at the close of an investigation you indict, you announce the fact and thereafter do your talking in court, not on the courthouse steps or in private leaks to reporters.
If the evidence you collect does not merit indictment, you don’t proceed. Then, whatever your personal feelings about that may be, you say nothing, or at most make an unadorned announcement of the fact. Your job is to prosecute crime, not to make public assessments of personal character.
In short, the job is about justice. It’s not about you.
Prosecutors can be heroes. But it is the self-abnegating heroism of the warrior-monk, not the self-promoting heroism of the solo knight errant who rescues maidens and slays dragons in the hope of having bards compose ballads extolling his fame. Unsurprisingly, however, people drawn to prosecution by the promise of action in the service of virtue can be seduced into seeing themselves as the second kind of hero.
A peculiar feature of a prosecutor’s life is that, although he is formally only a cog in a notably rule-bound machine, his day to day experience is of immense personal authority. This is particularly true in court. When you rise in the well of a courtroom to represent the United States, you are very much on your own. The questions you ask, the words you choose, the arguments you craft are yours and no one else’s. Even in making the decisions to bring or dismiss or plea bargain a charge, in all but the rarest cases, the individual prosecutor’s judgment will be dispositive.
One of the risks of becoming a career prosecutor is that, because you are so often in the right and so often confront people who obviously did wrong, in time you can begin to mistake the perpetual obligation to be right with inevitably being right. And as one rises in rank, filling offices in which one commands the resources and speaks with the voice of the United States Department of Justice, the deference that comes with such roles is immense.
It requires great discipline, deep self-awareness, and a strong measure of humility to keep remembering that the job is about justice and not about you. And that doing the job means following the rules, formal and informal, of the prosecutor’s code, even if doing so may seem unwise to you personally in the heat of the moment.
Jim Comey is an honest man, whatever the prevaricator in the White House may say. But he has not always been a wise one. And since the second half of 2016, he has repeatedly made grievous errors that very probably changed the history of America and the world, errors he might have avoided if he had adhered to the rules and longstanding norms of the United States Department of Justice.
Comey’s first error, now somewhat obscured by later ones, was the choice to hold a press conference in July 2016 to announce and explain in detail the conclusions of the FBI about the investigation of Hillary Clinton’s email practices while Secretary of State, including its decision not to recommend an indictment. Note what I just said — “conclusions of the FBI.”
Comey candidly admitted at the beginning of his press conference that he had not consulted the Attorney General about the recommendations he was about to discuss or the opinions he was about render. And he knew perfectly well how aberrational this behavior was. He said:
This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.
The FBI is an investigative agency subordinate to the Attorney General. It has no independent authority to bring or not bring indictments. Deliberations about whether to bring an indictment sometimes include FBI representatives, but the final decision rests exclusively with the prosecutors of the Justice Department and ultimately with the Attorney General. And those deliberations are conducted in private, before the final decision is made, not in the public square.
To anyone with experience in the American criminal justice system, Comey’s arrogance was simply flabbergasting. By announcing publicly what he had decided the outcome of the Clinton case should be before discussing his opinion with the Attorney General or her authorized designates he blithely assumed for himself a power no FBI Director has.
Worse, Comey’s expansive statement at the press conference flagrantly violated the Justice Department norm against discussing the details of investigations that do not result in indictment. That kind of exposition is disfavored because it always risks besmirching the character of the uncharged target of the investigation, while providing no forum in which to rebut the inevitable stain of having drawn prosecutorial scrutiny in the first place.
When the Department breaks with that norm, the decision to do so is made by the Department’s senior leadership, not by the FBI, which is, I repeat, merely a subordinate investigative arm of the Department. And careful thought goes into what should and should not be said.
Therefore, when Comey chose to march up to the microphones and provide a dog-and-pony show about the Clinton investigation, complete with his personal opinions about her “extreme carelessness” and the like, he committed two cardinal sins: First, he ignored the fact that, as FBI head, he was a cop, and no longer a prosecutor — that the Attorney General, not the FBI decides who gets indicted. Second, he ignored the norm that the Justice Department doesn’t “explain” decisions not to indict when the effect of the explanation will be to smear the person not indicted.
His excuse — that the “American people deserve .. details [of the FBI’s investigation and conclusions] in a case of intense public interest” — was both arrogant and in some measure disingenuous. By announcing the FBI recommendation not to indict, he effectively preempted Justice Department prosecutors. Once the FBI Director declared that there was no prosecutable case, prosecutors could hardly have decided otherwise.
But that, of course, was not the real objective of the Comey statement. The senior leadership of the Justice Department would surely have concurred in the recommendation not to prosecute, but would probably have issued a much more conventionally terse explanation of the decision. Instead, Comey got out front with a statement that simultaneously took credit for what, given the evidence, was the only sensible prosecutorial choice, while at the same time including enough tut-tutting disapproval of Secretary Clinton’s behavior to deflect the ire of Clinton critics on Capitol Hill and beyond from the FBI and James Comey, Esq.
But you don’t get to ignore chains of command or defining norms of prosecutorial behavior because you think it will make the FBI, or you personally, look better. The job is about justice, not about you.
Comey’s later decision to send his infamous letter to Congress mere days before the election saying that some unexamined Clinton emails had been found on Anthony Weiner’s laptop, and that the Clinton investigation might be reopened depending on what was in them, was even less excusable. In that case, he violated yet another important Justice Department norm, which is not to comment on the status of pending investigations immediately prior to elections. Why does the norm exist? Precisely in order to prevent what happened in this case: breaking news about uncharged crimes has the potential to sway elections, even if, as proved true here, the charges have no merit.
Comey’s explanations of this decision are wholly inadequate. He poses his choice as between disclosure and “concealment,” as if there is some obligation on the part of federal law enforcement to update the public or congress on every unsubstantiated lead in an investigation. But the norm is precisely the reverse. The Department and subordinate law enforcement agencies like the FBI don’t comment on the status of investigations until they are complete and they don’t comment on unsubstantiated leads at all. Particularly not less than two weeks before an election in which the subject of an investigation is a candidate.
Comey claims that he had some special obligation to inform Congress about this lead because he had previously told them that the investigation was closed and that he’d advise them if that status changed. In the first place, the general norm against non-disclosure of investigative details doesn’t change because of loose wording in a letter from the FBI Director. More to the point, there was absolutely nothing in Comey’s congressional letter that compelled him to disclose an unchecked lead days before the election.
Comey’s real reason was the worry that, if he had not disclosed before the election and something important was found on the laptop, then he would have been criticized by Republicans for hiding important information. To which the only possible response is — tough! Either disclosure or non-disclosure of uncorroborated allegations about a candidate can affect an election. The Justice Department policy against disclosure was created with full understanding of that dilemma. But it enjoins disclosure because only nondisclosure protects a candidate — like Hillary Clinton — whose electoral prospects will definitely be damaged by the release of information that may in the end prove baseless.
The mission of the Department of Justice is to convict the guilty, yes, but also to protect the innocent. Another part of its mission is to ensure that the process of winkling out truth does not warp the democratic process. If you work in the Department of Justice, or for its subordinate agencies, then no matter how high you climb, the job is still about justice. It’s not about you.
Rod Rosenstein has been sharply criticized, and not without reason given the timing, for writing the memo about Comey’s errors that Trump used to justify firing Comey. But everything in the Rosenstein memo — the facts and the judgments — was correct. Comey should have been fired. The only thing that makes his firing remotely controversial is that Mr. Trump sacked him for an unwillingness to do wrong in the future, rather than for the wrongs he’d done in the past.
Jim Comey is an honest man. Or at least as honest as any inevitably flawed human can be. But his basic honesty comes with two intertwined flaws. First, he knows he is honest, and on balance probably more honest than many people in public life. And that leads to a level of sanctimony dangerous in a man granted great public authority. Because if deep down you believe that you are morally superior, then you will be tempted to break rules and norms you see as having been created to cabin the base impulses of the less pure. But the prosecutorial norms Comey violated arose over long years to protect against both corruption and misguided virtue.
Second, although Comey is honest, he also has an irrepressible need to be seen as honest, indeed as more honest, and more forthrightly, courageously honest than anybody else. He thirsts, it would seem, to be publicly acclaimed as the the spotless hero of his own saga. And that is an especially dangerous trait in a law enforcement official. For such officials, it is not enough to be honest. One must also possess the virtue of self-restraint in the face of public criticism and a capacity for silence unless and until the law requires speech.
By choosing to publish a book and embark on an endless round of self-promoting interviews while the Mueller investigation is ongoing, Comey, tragically, confirms that his need for self-affirmation is stronger than his loyalty to the rules and norms of the justice system he purports to be defending. He knows that he is a central witness in a potential obstruction of justice case against the president, whether that case is made in the courts or in an impeachment inquiry. And surely he remembers that the very last thing any prosecutor wants is for his star witness to be parading around the country giving interviews and creating all the little inconsistencies and toeholds for cross-examination that can undercut the credibility of any witness. And yet he seemingly cannot help himself.
For those of us who love the American justice system and would defend it against the daily assaults of the man in the White House, the claim to “A Higher Loyalty” in the title of the Comey memoir is bitterly ironic.
Trump and Comey are polar opposites in virtue. But they are doppelgangers of ego. Neither can bear that the world might see him other than as he sees himself. As loathsome as Trump may seem to him, Jim Comey needs to understand that he, too, is hurting the Republic.