Published by The Lawfare Institute
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When James Comey became the FBI director, he set out to build what he terms in his new book the “government’s premier leadership factory.” The leaders he hoped to train successfully would be distinguished by, among other characteristics, their integrity, decency and their joy in the moral content and meaning of their work. He conveyed these expectations to his new employees, emphasizing that this was an ethical-leadership model that required a deeply personal commitment. So personal, in fact, that he issued a novel directive: “I order you to love somebody. It’s the right thing to do and it’s also good for you.”
These and related passages of “A Higher Loyalty” about Comey’s public ethics have not commanded much attention, though Comey’s story is less interesting without them. They provide crucial context for grasping and evaluating Comey’s choice to depart from institutional norms and processes in his controversial management of the Clinton email investigation in 2015 and 2016. He has a distinctive view of how, in exigent or extraordinary circumstances, the genuinely ethical leader may have to protect institutions by breaking with the norms and procedures that usually sustain them. He lays out an affirmative case for this position that merits close consideration.
Government lawyers sometimes remind themselves and one another that “process is your friend,” but Comey argues for a major exception—a “higher loyalty,” which is a personal, ethical demand or imperative. It commits the leader to recognizing and, as necessary, acting on this higher, superseding duty when standard operating procedures and norms are insufficient to protect core institutional values and public confidence. Comey urged his bureau employees to read Martin Luther King Jr.’s “Letter from Birmingham Jail,” “one of the most important things [Comey] ever read” and, it would appear, a source of Comey’s conception of ethical leadership. King famously urged his readers to accept that the refusal to follow an unjust law, if done “openly, lovingly, and with willingness to accept the penalty,” may be an expression of the “highest respect” for law. Sometimes, King wrote, the law had to give way to a “higher moral law.” Of course, Comey is not arguing for public officials to disobey laws; far from it. But one can see in the “higher loyalty” that Comey espouses an echo of this call to conscience, which would require a leader to flout norms and processes—the standard rules of the road—if those rules are not up to the task of protecting enduring values and norms.
Comey concedes that a leader prepared to act this way may be misled by ego and overconfidence in his own judgment; he acknowledges that he himself “can be stubborn, prideful, overconfident, and driven by ego,” and that he has “struggled with those [flaws] my whole life.” He remains convinced, however, that the ethics of higher loyalty are more than the sum of a leader’s own impulses or instincts. As director, he aspired to train a bureau of leaders to absorb and practice these ethics. And for a program like his to succeed, he must have believed that there is substance to this leadership style that can be communicated and taught.
So Comey’s book invites an evaluation of this ethical program, which is impossible to perform without returning to the key case study: his decision to separate from Justice Department leadership and publicly announce, on his own terms, his recommendation to end the Clinton investigation without charges. There was more controversy to follow, of course, in the fall, when he sent letters to Congress to first reopen the investigation and then close it once more. But the circumstances in which he found himself in October and November arose in the first instance from the choice he made months earlier, and it is this original decision that supplies the primary illustration of “honest loyalty.” Comey sees the episode in just this way, as a teaching moment: his “goal was to tell the truth and demonstrate what higher loyalty—to the institutions of justice—looks like.”
In July 2016, Comey devised an abnormal process in which he leapfrogged the chain of command and assumed responsibilities that the law allocates to others. He acted unilaterally because he concluded that it was, in the circumstances, “the best thing the FBI and for the Department of Justice.” This goal shaped the mode of announcement and its content, which included a sharp critique of Hillary Clinton’s email practices.
Comey acknowledges that his actions in the email investigation constituted radical departures from normal practice, most of all his decision to “visibly [step ]away” from the attorney general and announce the conclusion of the Clinton investigation in July. He even declined, when asked by the attorney general, to inform her of the content of his recommendation in the Clinton investigation. She would learn about it not much before the public did. He argues that the circumstances were extraordinary and that other responsible officials, the attorney general in particular, could not in this particular case represent the apolitical independence that he wished to project for the Justice Department and the bureau.
Comey writes that at an earlier point in the investigation, he raised with Deputy Attorney General Sally Yates the need for unusual transparency when the investigation was closed. She did not get back to him, he recalls, but soon two events persuaded him that further consultation or coordination was inadvisable. A still-classified email surfaced in the investigation that he believed that partisans would seize on to claim that the attorney general had committed to protect Clinton from legal harm. He did not credit the content of the communication, but feared the consequences of partisan distortions for the reputation of the Justice Department. Then the attorney general announced what Comey refers to as her “tortured half-in, half-out” quasi-recusal following the meeting with Bill Clinton at the Phoenix airport.
It was then that Comey concluded that he would go it alone—a course of action that, without explanation, he refers to as a “crazy idea of personally offering the American people unusual transparency, and doing it without the leadership of the Department of Justice.” To the extent that there was a deliberative process, it occurred entirely within the FBI: there, Comey drew on the advice of his management team. So, on an issue of this magnitude, the circle within which views could be expressed was tightly drawn. Comey addressed the process problem he faced through an ad hoc, closed process of his own. He might have thought he was left with no choice, the other principals having disqualified themselves from participation.
But it is on the hard questions that one might believe that standard, systematic, and inclusive process is indispensable. Of central importance to any effective deliberative process is the choice of those invited to participate and the terms set for the discussion. The legally accountable officials or their representatives should be present, of course: In the Clinton email case, that would be the attorney general, the deputy attorney general, and their key senior advisers. Not all participants need a formal claim to share in the final decision-making; some may be included because they bring useful expertise or experience. Whatever the structure, it would be exceptional for an FBI director to conclude, as Comey did, that he should unilaterally and radically operate outside his normal role in a major case—acting as both investigator and prosecutor and making plans for the public announcement—and limit participation in this decision to senior bureau staff.
Comey is by no means generally indifferent to issues of process. He speaks to them earlier in his book when he criticizes David Addington, counsel to Vice President Dick Cheney, for his secretive management of the Stellar Wind surveillance program. Addington “read in” only four members of the Department of Justice, which Comey judges to be “unusual if not unprecedented” for “an activity of such profound importance.” There was still more abnormal process, as Addington kept the presidential authorization papers in his control, in a safe in his own office. Comey was incredulous, stressing for the reader there was a case of the “vice president’s lawyer [keeping] the orders bearing the president’s signature…” (emphasis in the original). Comey’s criticism of the vice president’s lawyer apparently usurping the role of the president’s bears some resemblance to public criticism of Comey’s assumption of prosecutorial functions in the manner he did in 2015.
In the Clinton email investigation, Comey cites considerations that were decisive for him in his own unilateral reworking of roles and process: public confidence in the Justice Department and the imperative that a leader choose the ethical course. It is unclear whether these two factors necessarily, much less always, interact harmoniously in a particular decision. A leader acting on ethical beliefs or intuitions could well shake public confidence in governmental institutions. The public may cry out for justice when, for various “technical reasons,” the law, reasonably interpreted and applied, cannot deliver that result—but the ethical prosecutor does not bring charges in those cases to meet the public demand. Moreover, under the rules of professional responsibility, the ethical prosecutor can’t escape this problem by openly condemning the subject that he or she is declining to indict.
Comey’s emphasis on personal ethical judgment also raises the question of how this judgment fits with his public role. Comey has dismissed politics or friendship as constraints on doing “the right thing.” At his 2003 confirmation hearing on his nomination to be deputy attorney general, Comey told Congress that he “would never be part of something that I believe to be fundamentally wrong.” This imperative of “doing the right thing” appears at various points in his narrative.
But an individual moral commitment to doing “the right thing” is necessarily open-ended and indeterminate. If a senior official is wrestling with an issue that engages these commitments, there is always the risk that, especially in a closed decision-making process, the resolution will be shaped by the leader’s personal moral considerations or instincts. The official will feel that he has done the right thing, but it may be less transparent to others what this judgment consists of, and how it meshes with the considerations appropriate to his role.
What, then, is the “right thing”? Comey’s account makes clear that he takes the rights and wrongs of situations to extend well beyond what is set out in law or the code of professional responsibility. Consider his highly commendable insistence during the Bush administration that the government take seriously what it means to mistreat another human being, not hide behind a series of reworked, narrow and contestable legal definitions of “torture.” He argued then that “just because something was deemed to be legal … and allegedly effective did not mean that it was appropriate,” and that the responsible officials had to dispense with hypotheticals and consider the matter in terms of “real interrogators reacting to real subjects.” He writes that his trust in the “system” collapsed when Attorney General Alberto Gonzales would not insist on committing these concerns to a serious deliberative process at the White House.
In thinking about these issues, Comey is highly attuned to the “moral content” he urged his bureau employees to keep centrally in mind when reflecting on their mission. There is more evidence of this in his account of the private meeting with President George W. Bush during which the president pressed him on his refusal to concur in the reauthorization of Stellar Wind. He rejected the president’s offer of a compromise that involved giving the administration time pursue a legislative solution. In explaining his unbending stance, he put front and center his personal ethical engagement with the issue, citing Martin Luther: “Here I stand. I can do no other.”
In the Clinton investigation, Comey adopted a similarly firm stand on how the Justice Department should account for the outcome and establish that it was reached independently. There, too, he concluded that he could do no other. But this was a decision about process—about how the right substantive decision would be reached. The ethics inevitably implicated in matters of substance, as in Comey’s objections to Bush administration “enhanced interrogation techniques,” do not translate as well into matters of process. The best-designed process is an aid to full deliberation about the ethics, along with the legal and policy bases, of particular policy choices. It is within agreed, well-structured process that these ethical judgments can be aired and debated.
For this reason, if there is sure to be disagreement about substance in the hard case, it is important to have something close to consensus about the process for making a decision. If it appears that the process normally used falls short of what is needed to have critical views presented and argued, then the process should be appropriately adjusted, but with all stakeholders involved in any such decision to deviate from regular order. In the Clinton case, Comey excluded from the deliberations on that issue all senior Justice Department officials other than those at the FBI. It is not easy to see how and why these other officials with just as great a concern as his with public confidence—and an official responsibility for it—could be wisely or prudently denied the opportunity to express their views.
For example, Comey does not explain why the FBI did not engage the Justice Department leadership in a discussion of the “tortured half-in, half-out” Lynch recusal. He describes this quasi-recusal as “very strange” but does not suggest that he inquired into what the attorney general meant or how she expected this arrangement to function. It seems that this would have been a discussion worth having. One issue that required clarification was the attorney general’s judgment that, while not fully recused, she would defer to “career prosecutors.” How as a process matter would this be accomplished by conferring decision-making authority on the FBI director who, like Lynch, was a political appointee and not in this job a prosecutor? And to what extent would the career prosecutors have a say in how the decision would be publicly announced?
Another question was whether the recusal somehow extended to Sally Yates. If Yates was not recused, then Comey would have been spared taking unilateral responsibility, and regular order would have prevailed with an announcement by the deputy attorney general of his recommendation and, presumably, her acceptance of it.
Comey did face, as he stresses, “abnormal,” unprecedented challenges to the credibility of the investigation. It may be that neither “Main Justice” nor the FBI was prepared to take the first step to initiate a dialogue about these and other process issues. Perhaps each perceived the matter to be too sensitive to allow for direct contact. But, to repeat, the risks of the appearance of impropriety would have been low precisely because there were questions of process at issue, not consultations over the merits of the decision. Senior government officials have to have an understanding of how, by what process, a decision will be reached. It is a fundamental question of public administration. In the absence of deliberation, the Lynch recusal was undefined and Yates’s role left puzzlingly unclear.
Comey cannot be held solely responsible for the confused and difficult situation in which the Justice Department found itself. The question is whether, without a full and deliberative process involving all concerned officials, he was right to conclude that he was the one to sort things out. Nothing in his book suggests that he forced the issue with the attorney general, such as by transmitting a recommendation memo and leaving it to Main Justice to decide on a process for review and announcement. He did not demand a full review of the options for satisfactorily and credibly concluding the investigation. He took the responsibility on himself, believing that ethical leadership as he understands it was required and that he was the only one left to provide it. The reader has to accept Comey’s conception of ethical leadership, and his judgment that he was that leader in that moment, to agree with him that his abandonment of standard processes in 2016 was “the best available alternative to protect and preserve the Department of Justice’s and the FBI’s reservoir of trust with the American people.”
What is most striking about Comey’s chronicle of his experiences is the assertion that by 2017, he had concluded that he could not, as he did mistakenly in the Bush years, “trust that the system would work.” He had been trusting before, and in the Bush years had been let down. “I wasn’t going to make that mistake again.” For that reason, once fired, he arranged for the leak of memos that he correctly calculated would lead to the appointment of a special counsel. To do the right thing, he had to act outside “the system,” as he did when still in government in 2016 in the Clinton matter. The very system he was hoping to protect with his actions—a system which he deeply believed needs to retain public confidence—was one in which he seems to have lost his trust.
So perhaps partly moved by the mistrust engendered by the Bush years, Comey elected in the email investigation to go his own way, doing the work that he concluded was not possible through adherence to standard processes. His readers might ask whether Comey is right—that regular order may not be adequate in extraordinary circumstances, requiring us to trust in the ethical leader, after which the norms and processes are restored. Or, they could draw the conclusion that if norms and processes fail under extraordinary pressures, they are flawed and should be reconsidered, revised or reformed. Comey argues for the former—for the preservation of norms and standard procedures—but his book is a case for the periodic need to disregard them for their own good, through the intervention of an ethical leader.
This conclusion depends for its viability on an agreement about who will be tasked with this leadership responsibility and given the latitude to circumvent regular order. One objection to Comey’s actions in 2016 is that, fully granting that he took them in good faith, there was no such agreement within the Department of Justice that the director of the FBI should assume this role. And if there is no such agreement, but a senior official in Comey’s position decides that special circumstances require that he take exceptional measures, it becomes that much more important that the standards he applies to the decision—the ethical criteria that drive it—be clear and command wide assent. Comey appreciates that he had not secured that assent, but has instead become, as he titles one of the Clinton chapters, “roadkill”—a casualty, as he sees it, of tribal partisan politics.
On the substance of his decision, Comey could rightly expect that he would be hit by the heavy political traffic going both ways. It was an extraordinary situation in which, as he anticipated, he could count on few friends. Process could have been one of them. Its absence complicated Comey’s achievement of the very goal—preserving the appearance of the Justice Department’s operating in the ordinary course, unaffected by election-year pressures and considerations—he most cared about.