Now Comey, the director of the FBI, is being accused of interfering in the presidential election for notifying Congress last week that federal agents had found new emails that could be pertinent to the bureau’s investigation into Hillary Clinton’s private server. What Comey is doing, though, is what he’s always done: standing up for what he believes is right, no matter the political consequences.
Prosecutors and agents who worked alongside Comey, as I did when I was the U.S. attorney for Arizona, know him as a straight shooter. Comey burnished that reputation all the brighter the first time he famously refused to follow what one might call accepted Justice Department practice. In March 2004, while serving as deputy attorney general, Comey found himself traveling with lights flashing and sirens blaring to intercept then-President George W. Bush’s top aides. Bush’s emissaries were at that time attempting to get Attorney General John Ashcroft, then in an intensive care unit, to sign off on what Ashcroft and Comey saw as an unlawful domestic surveillance program.
Comey’s predecessors within the department had previously approved that program. Acting at a time when the Sept. 11 attacks were much more present in our memories and with the wars in Afghanistan and Iraq still raging, Comey faced a choice: accept the program out of deference to Justice Department norms and custom, or reject the program as constitutionally infirm. In a dramatic and very real showdown in Ashcroft’s hospital room, Comey put norms to the side and refused to bend to the president’s wishes.
At the time, Obama called Comey a “rarity.” Why? “He doesn’t care about politics,” said the president. Later that year, at his Senate confirmation hearings, Comey committed to “transparency,” a concept he said would be crucial when dealing with Congress. Sen. Charles E. Grassley (R-Iowa), then the ranking member of the Senate Judiciary Committee, noted that Comey had “shown a willingness to stand his ground if necessary.”
The president could have sought, or the Senate demanded, a more compliant FBI director, one who cared about politics more than transparency. One who would have toed Justice Department policy lines, attended to the political whims of his bosses and exercised little, if any, independent thought.
This June, while speculation about a federal criminal investigation into Clinton’s emails coursed through the media, Attorney General Loretta E. Lynch took a meeting with former president Bill Clinton on the Justice Department’s private jet parked at the tarmac of Phoenix’s Sky Harbor Airport. After that encounter, so as to better protect the integrity of the criminal investigation, Lynch publicly ceded her decision-making authority to Comey. In so doing, she effectively delegated the discretion to bring charges from the nation’s chief prosecutor to Comey, the nation’s chief investigator. No policy, no precedent, nothing in the Justice Department’s history allowed for such a shift in responsibility.
Even so, no credible authority doubted the wisdom of allowing Comey to make the call about whether to charge Clinton with a crime. Neither political party objected to what was so clearly a deviation from Justice and FBI norms.
Yet when Comey announced his decision that no reasonable prosecutor would charge Clinton, critics were quick to point to policy that would have had Comey conduct himself differently. Republicans believed he should have charged her. Democrats were upset that Comey gave too much detail and information. And this past week, after Comey alerted Congress that the discovery of additional emails mandated further review, critics with hands on hearts again cried that Comey had run afoul of policy.
Where were those same critics and hard-liners when Comey bucked Bush in 2004? Why the grateful applause when he willingly shouldered Lynch’s responsibility in July?
All prosecutions of political figures are fraught with such perils, and predictable. Comey knew this, as do I. I served as a federal prosecutor for 16 years. In 2006, while the U.S. attorney, I led a criminal investigation into a member of Congress. Because I am a Republican, as was the target of our investigation, Democrats were quick to complain that I would let my fellow Republican off the hook. As we got closer to indictment, Republicans joined the chorus, and complained that I was not a “loyal” party member.
In May 2005, long before the High Noon drama at Ashcroft’s hospital room was known to the public, Comey gave a speech to an audience of government attorneys working in the intelligence field. Comey addressed the need for public servants to act courageously. He counseled his audience that when faced with difficult decisions, they must employ a unique ability: “the ability to transport ourselves to another time and place; and the ability to present facts to an imaginary future fact finder.” Making difficult decisions, Comey argued, “takes more than a sharp legal mind.” It takes “moral character.”
In making his decisions with regard to Clinton, Comey looked to our nation’s future and exercised his own, and independent, judgment. With Comey, past is prologue. Where policy and Comey’s sense of what is right conflicted, Comey would do what is right.
While many may disagree with Comey’s decisions today, we are better served if we reserve judgment. In the near future, the nation will look back and realize the wisdom of trusting a public servant with moral character.