Comey’s Higher Loyalty to Law

Lawyers learn the art of writing persuasive briefs to win cases, even when their heart does not support the facts of the case or the governing law. Writing, deliberately dissociated from personal beliefs, is a mind game for lawyers. James Comey, the author of A Higher Loyalty, has spent most of his life in law, some in private practice, and some in prosecuting criminal cases. The reader needs to be on guard in the midst of persuasion.

One more caution is in order. Comey is a prosecutor. He has prosecuted New York mobsters for violent crimes, Martha Stewart, and Scooter Libby (a lawyer) for lying to the FBI. He has investigated Hillary Clinton for using unsecured servers to exchange protected information. Comey is a key witness if President Trump were charged with obstruction of justice.

A prosecutorial mind, such as Comey’s, sees human behavior in ways that ordinary people do not and cannot. After years of dealing with crooks and liars, distrust shapes the prosecutor’s vision. Sometimes, prosecutors, in the zeal to prove the case, may send innocent persons to prisons and firing squads. For the most part, however, they have a good sense of sorting out the criminals. They know the dynamics of lying and bullying.

In A Higher Loyalty, Comey comes across as a prudent lawyer and a reluctant prosecutor, who prefers doubt over self-righteousness, consultation over going alone. While joining the people in authority, Comey rarely forgets his humble Irish origin. He constructs negative and favorable opinions as he observes and interacts with presidents, vice presidents, chiefs of staff, attorneys general, and others. While examining the products of power with skepticism, Comey does not rush to cynical judgments.

For example, he disapproves of the torture memos written after 9/11 but cares about national security. He resists the proposal to expand domestic surveillance that law does not support. He talks about ethics and “our obligation to try to seek justice in a flawed world.”

Consequently, the book reads as morally engaged writing, honest in argument, candid in detail, though preachy in tone as Comey belabors the concept of leadership anchored in toughness and kindness—a concept he aspired to emphasize in his leadership of the FBI. But Trump fired him.

As falsely projected in media reviews, the book is not pivoted on Trump, who appears only in the final three chapters. A lot is autobiographical, narrating how his family living in New Jersey faced the ambush of Ramsey Rapist, how the death of his newborn abruptly changed the meaning of life, and how Billy Currington ’s song “God is great, beer is good, and people are crazy” echoes the world.

The book is carefully decorated with bits of humor, curse words, situational ironies, and dramatic renderings of insignificant events, such as “scooping an apple” from Obama’s oval office for Comey’s daughter waiting at home, and conjecturing that Trump does not laugh.

But there is serious stuff that makes the book a written testimony of two monumental events: Hillary Clinton’s email fiasco and the demise of Trump’s presidency in the near future.

Comey makes a cogent case why the email fiasco was nowhere near a criminal act that would have disqualified Hillary Clinton from running in the 2016 presidential election. He contrasts what General Petraeus did to breach national security with what Clinton did to make his case.

First, Petraeus shared photocopies of secret documents with the reporter-lover writing his biography. Clinton shared secret information but not any secret documents over the unsecured server. Sharing secret documents is a grave breach of national security.

Second, Petraeus’ reporter-lover had no security clearance. However, the people with whom Clinton exchanged emails over the unsecured server did have security clearance.

Third, Petraeus lied to the FBI. Clinton did not.

In breaching national security, Comey concludes, what Petraeus did was much more egregious than what Clinton did. Yet Petraeus was charged with a misdemeanor in a plea bargaining agreement. He paid a fine of 40,000 dollars and got off the hook.

Comey also makes a credible case that he was obligated to tell Congress that thousands of additional emails retrieved from Anthony Weiner’s laptop had been uncovered after clearing Clinton of wrongdoing. Weiner was the husband of Huma Abedin, Clinton’s deputy chief of staff.

As the FBI director, Comey opted for revealing rather than concealing the new information even though, later, nothing criminal was found in the emails. The FBI flip-flop might have swayed the election against Clinton, a possibility that Comey does not rule out. But the FBI did not stage or manipulate the timing of finding the laptop emails. This is how reality unfolded.

Note, however, that the Department of Justice advised Comey not to tell Congress about the laptop emails but did not instruct him. “They didn’t order me not to do it,” writes Comey, “an order I would have followed.” Ignoring the advice, delivered more than once, Comey opted to tell, believing that hiding “would be cowardly and stupid.”

The chapters on Trump lay out two significant accusations emerging from the one-to-one meetings between Trump and Comey. First, Trump demanded “loyalty” from Comey as the FBI director, just “like Sammy the Bull” would demand loyalty from a new consigliere “at the induction ceremony.” Second, Trump demanded that the FBI “let go” National Security Advisor Mike Flynn whom Trump had fired for misleading Vice President Pence over the sanctions conversations with the Russians.

In solo encounters with Trump, says Comey, “I once again was having flashbacks to my early career as a prosecutor against the Mob.”

The first accusation against Trump smacks of prosecutorial overreach. True, Trump is a wheeler-dealer, facing lots of shady lawsuits and sex scandals. Yet Trump has no criminal record of murders, assaults, abductions, strangulations, and other crimes that Mafia bosses routinely perpetrate.

The loyalty to a U.S. president cannot be compared with the loyalty to a Gotti, Gambino, or Gravano. This is where Comey’s parallel, even as a literary device, fails. As a lawyer, Comey should know better.

Despite literary device errors, Comey makes a solid case that the FBI protects the state and not the government. The interests of the United States are superior to the interests of a government, Democratic or Republican. No president may lawfully demand from any federal agency loyalty to his person or his cabinet at the expense of the United States. Comey has every reason to subscribe to “a higher loyalty,” and he rightfully questions rendering loyalty to the president.

The second accusation against Trump is tantamount to the impeachable offense of obstruction of justice. The FBI has no authority to “let go” a government official suspected of committing crimes and close the case before completing an investigation. Flynn has been under investigation for a number of offenses even before special counsel Robert Mueller was appointed to examine the Russian interference in the 2016 general elections.

If Flynn were clean, the investigation would exonerate him. If he broke the law and were convicted, the president could pardon him. But Trump demanding the FBI stop an investigation is classical obstruction of justice.

Hopefully, Trump will be impeached for overseeing a turbocharged clan of dishonorable powerbrokers conspiring with a foreign nation to subvert the democracy of the United States. His attempt at the obstruction of justice in the Flynn case is clear. Impeaching Trump, something Comey opposes, will be good for American democracy and the rule of law.

Comey prefers that Trump be defeated in the next general election. Comey misses the point. Impeachment safeguards the rule of law whereas the general election renders a verdict on policies pursued within the legal framework. Even highly popular presidents may be “removed from Office on Impeachment for . . . high Crimes and Misdemeanors.” Trump, obstructing the rule of law, deserves impeachment regardless of his popularity. And waiting for the next general election is the needless extension of harm to the rule of law.

Offering the book as evidence, Comey claims to have committed no intentional wrong to harm Hillary Clinton, Donald Trump, the FBI, or the United States. Even the readers guarded against lawyerly persuasion might agree with him. Comey has been a morally upright lawyer for the most part of his career, though his experiences with the New York criminals have tainted his metaphors and analogies.