First Tragedy, Now Farce

May 16, 2017
Guest Post

*This piece originally appeared on the Take Care blog.

**This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

by Frederic M. Bloom, Professor of Law, University of Colorado Law School and Jon D. Michaels, Professor of Law, UCLA School of Law

We have all heard the saying: those who do not learn from history are doomed to repeat it. History seemed to repeat itself earlier this week with Donald Trump's firing of FBI Director James Comey. Some have tried to cast Comey’s dismissal as unremarkable—just a president exercising his authority to fire an executive official he no longer trusts. But make no mistake: Comey's dismissal is exceptional. Indeed, it is so exceptional that it forces us to recall Richard Nixon’s craven directive to fire Special Prosecutor Archibald Cox, right as Cox was hot on the Watergate trail.

Like most analogies, this one is imperfect, and all of the contrasts and differences prove unkind to the incumbent Administration. Start with Nixon’s Saturday Night Massacre: Impressive as they come, Archibald Cox had been brought in from Cambridge, where he served with distinction as a Harvard Law professor, a position easily admired but also readily lampooned. (Recall William F. Buckley’s famous quip that he would “sooner be governed by the first two thousand names in the Boston telephone directory than by the two thousand members of the faculty of Harvard.”) Cox’s credentials were pristine, but there was little doubt of his partisan bona fides. He ran in Democratic circles—not Nixon’s—advising John Kennedy during his time in the Senate, as part of JFK’s presidential campaign, and ultimately as the young president’s solicitor general. Through profession and perhaps party affiliation, then, one could spin a story (however far-fetched) that discounted or discredited Cox’s new gig as a special prosecutor.

James Comey, by contrast, cannot be so readily spun. He is neither a fuzzy-headed academic nor a partisan operative. He has spent most of his career in government, often in nonpartisan positions of great trust and consequence. His political appointments have come from Republican and Democratic presidents alike—first, from George W. Bush, who named him U.S. attorney for the southern district of New York and then deputy attorney general of the United States; and later, by Barack Obama, who chose Comey to lead the FBI. What’s more, unlike Cox, Comey inhabits a post-Watergate world, an environment in which the norm against political interference with ongoing criminal investigations could hardly be stronger. When Nixon fired Cox, we were in unchartered territory. When Trump axed Comey, we already knew how the story was supposed to end.

Or did we? Consider another difference between then and now. After that fateful Saturday night in 1973, Attorney General Elliot Richardson and Deputy Attorney General William Ruckleshaus, the Jeff Sessions and Rod Rosenstein of their day, fell on their swords. They resigned rather than give the president the cover he so desperately sought. Nixon’s directive to fire Cox was still enforced – in the end by then-Solicitor General Robert Bork – but Richardson’s and Ruckleshaus’s sequential resignations signaled to all the world that this was a president not to be enabled and a White House not to be trusted. Even more, their sequential resignations signaled to all the world that the Department of Justice has integrity, has standards and has a status and a role more (and more important) than simply as a law firm that the president holds on retainer. 

That was then. It is not now. Neither Sessions nor Rosenstein has gestured at stepping down. (When rumors circulated that Rosenstein threatened to resign over, tellingly, the White House’s attempt to pin the decision to fire Comey on the deputy attorney general, Rosenstein quickly and emphatically denied them.) This inaction has a price. By doing so very little to isolate Trump when it comes to Comey’s termination, Sessions and Rosenstein have only confirmed our worst fears. Where once the Department of Justice stood for noble truth against naked power, it now slinks into silence. Another institutional fail-safe, so important in 1973, seems to be failing us now. (It is worth noting that the Department of Justice was not important only in 1973. It was vital too during some of the darkest days of the George W. Bush presidency, when Comey himself reportedly threatened to resign unless the White House agreed to abandon a controversial surveillance policy.)

Some may still argue that we are better off with a Rod Rosenstein, and not a more obsequious Trump lackey, in charge. (Sessions, remember, claims to have recused himself from the Russia investigations.) At least Rod Rosenstein—like Comey, a longtime government lawyer—knows where the brakes are, should he ever wish to apply them. But is this faith deserved? Is it trust earned? What ameliorative work can we expect Rosenstein to do if, in what was effectively his first appearance on the national stage, he rolls over for Trump on Comey?

None of this is to say that Comey was perfect at the FBI. Far from it. But here tradition and timing are everything. It is no accident that FBI directors have a statutory term of 10 years—not four or six or even eight. It is no accident either that FBI directors have long been treated as quasi-independent officials, empowered differently than most other political appointees—and not generally thought of as serving only at the pleasure of the president. And then there is question of timing. Even if there were no tradition of FBI independence, why dismiss Comey now? Why, during an investigation that – oh by the way –Comey was seeking to expand, would Trump choose to fire the man then?    

These questions are not rhetorical. There is an answer, and it lies in part in an important amendment to our starting claim about history repeating. Those who forget history are indeed doomed to repeat it. But when history repeats, it often shifts in the repetition: first acts come as tragedy and then return as farce. By many measures, Nixon was a tragic figure. He was politically skillful, believed in the project of government and showed flashes of integrity—at least before entering the Oval Office. He was undone there, like so many tragic figures, in large part by his own foibles, demons and flaws. To be clear, we do not mean to give Nixon too much credit. He went way too far – and it was others, good men and women, who forced him to come to terms with the criminality he enabled, encouraged and presided over. Yet even so, there is, at least in retrospect, a hint of tragedy in Nixon’s rise and fall.

Trump, by contrast, is pure farce. He cares little about government, or the rule of law, and is openly disdainful when it comes to the norms and conventions of government service. He embraces unpredictability and celebrates chaos, a fact nowhere more evident than in his petty and erratic tweets. And regardless of his risibly feckless first 100 days—consider his ineffectiveness in the legislative arena, his plummeting approval ratings, his bizarre foreign policy gambits—he has in fact accomplished a lot. He has torn massive holes in the fabric of American law, politics and culture. Clumsily but surely, he is reshaping government in his own image: fickle, rash, immoderate and vindictive. 

Unlike tragedies, farces do not end with a flash of recognition—a moment of self-awareness like King Lear’s on the heath. Farces just keep going until someone cries enough! We fear Trump’s farcical performances will continue so long as otherwise good men and women—and there are many—remain silenced, cowed or complicit. That is why, in the end, direct comparisons between Nixon and Trump necessarily miss the mark. Leaders do not exist in vacuums. They are the products of their respective environments – their staffs and enablers and critics and rivals. And here is where the dichotomous roles played by Ruckelshaus and Rosenstein come into play. When Ruckleshaus fell on his sword, he lost his job but pierced a president—and thereby hastened the tragic fall (while also laying the groundwork for the redemptive work that marked the political and legal reforms of the mid-to-late 1970s). To date, Rosenstein’s sword remains in its scabbard—like all of those, not just in the Justice Department, but also in the EPA, the State Department and surely Congress. Such stoic reticence is not virtuous, even in less fraught times. It may, we fear, be a kind of toxic enablement, further emboldening a president who may scarcely realize that he is getting away with things that would have made Nixon blush. We thus call upon the Rosensteins of today to stand up, to step forward, and to close the curtain on this farce. 

We say Rosensteins, and not just Rosenstein, for a reason. We need a pair of Rosensteins, if not more. Here two is far, far more than one—and three far more than two. Remember 1973: Richardson had Ruckleshaus – and vice versa – and together they brought down a White House. Ruckleshaus and Richardson plus Bork might have brought down Nixon even faster. But Richardson or Ruckleshaus acting alone might have become a mere historical footnote—a small obstacle easily overcome (and quickly forgotten) as the rest of the Justice Department fell into line. Here again 2017 is relevant. Just think of Sally Yates, who stood to speak truth to power, but did so alone. Yates’s solo gesture was inspiring. But truth be told, it was largely ineffective, swept aside in a flurry of intemperate tweets and papered over by Yates’s replacement ready and willing to enforce the president’s directive. Just think what might have happened to that (by almost all accounts) unlawful travel ban – and perhaps Trump’s broader relationship with the Department – had Yates’s replacement followed her lead.

We might call it the buddy system of loyal dissent. It is what worked so well in 1973, so reportedly well when Comey – along with other senior Justice officials – threated to resign over surveillance policy, and it is precisely what we need now. We need concerted institutional resistance to regain the public’s trust, to reaffirm that we are indeed a constitutional republic and to lay the foundation for the great work that must begin, sooner than later, in restoring the reputation of the federal government, at home and abroad.