With the 58th presidential election under the U.S. Constitution now less than a week away, it is clear that the 228-year-old document is not achieving one of its central purposes.
James Madison intended it to curb “factious spirit” — what we call “partisanship” — which he correctly identified as the bane of popular governments, both those that had existed before 1788 and the ones in the 13 newly independent American states.
Yet today’s Republicans and Democrats are so divided that they no longer seem like citizens of the same nation or acknowledge even the same factual reality.
Among the many manifestations of out-of-control factious spirit, none is more dismaying than the obeisance Republicans have paid their party’s patently unfit presidential candidate, Donald Trump, out of a combination of opportunism, blind factional loyalty and hatred of his opponent, Democrat Hillary Clinton.
None is more dangerous, though, than the potential partisan politicization of federal law enforcement, especially its investigative arm, the FBI.
If you really wanted to destroy a democratic republic, the surest way would be to turn its prosecutors, investigators and intelligence-gatherers into the instruments — actual or perceived — of a political party.
[Eric Holder: James Comey is a good man, but he made a serious mistake]
Yet this specter haunts the United States in the aftermath of FBI Director James B. Comey’s potentially election-altering letter announcing that the bureau must renew its investigation of the off-the-books email system Clinton operated while secretary of state.
Is that alarmist? To be sure, the FBI and the rest of the intelligence community — CIA, National Security Agency, Secret Service — have faced their share of scandals over the years, from wiretapping civil rights leaders to waterboarding terrorism detainees. For all that, these institutions remained generally above the fray with respect to outright electoral politics, restrained by law, policy and an ethos of national service traceable to the global crises, World Wars I and II and the Cold War, that shaped them.
Notwithstanding the hyperbole of their critics, these agencies never became U.S. versions of the Gestapo or KGB, because, unlike the latter two, they were not the creatures and creations of a political party, much less a totalitarian one. They fought for their own bureaucratic interests but remained subject to oversight and legislative reform carried out on a bipartisan basis.
Nor is it clear that Comey, or his nominal superiors at the Justice Department, are acting out of conscious partisan motivation now, despite dueling partisan accusations to the contrary.
Rather, they have lost their perceived impartiality despite their various attempts to preserve it, which a mistrustful, polarized society, obsessed with a high-stakes election, refuses to credit.
On the issue of indicting Clinton, the buck should have stopped with Attorney General Loretta E. Lynch, who, despite her obvious Democratic affiliation, is the politically accountable head of federal law enforcement.
However, she accepted an invitation to hobnob with Clinton’s husband, former president Bill Clinton, in late June, just three days before a scheduled FBI sit-down with Hillary Clinton. This blunder created a terrible appearance, inflamed Republicans and forced the attorney general to defer to Comey on Clinton — even though she didn’t fully recuse herself from the case, and even though that is not his institutional role.
Then came Comey’s news conference, an act of improvised transparency that buoyed Democrats and infuriated Republicans when he explained that Clinton was “extremely careless” with classified info, just not criminally so.
His even more unorthodox subsequent testimony before Congress, in which he defended his finding of non-prosecutability before hostile Republicans but promised to act on any new information, set the stage for last week’s bombshell, to which Democrats have responded by vilifying the same FBI chief they lionized when he exculpated their candidate.
Lynch, or her designee, had the power to order Comey not to send his letter. Media reports say unnamed Justice officials warned him that it would violate policies against prosecutorial action too close to an election, but they stopped short of an express command to stand down — for fear of precipitating an even bigger election-eve crisis.
The net effect of so much irregular procedure has been to convince partisans of all stripes, possibly lastingly, that these vital institutions cannot be trusted, and therefore must be fought over.
If Trump wins, Democrats would consider it an FBI-engineered victory. If Clinton wins, she would face the awkward predicament of working on anti-terrorism and other vital efforts with an FBI director still pursuing a Republican-encouraged investigation of her emails. Comey’s term expires in 2023.
Many Democrats (and not a few Republicans) think Comey should resign, in part to head off that predicament. But that would probably lead to a new problem: a partisan impasse in the Senate over replacing the FBI director, just like the one we already have involving Justice Antonin Scalia’s former seat on the Supreme Court.
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