America's "deep state" exists and Fareed Zakaria says Americans need look no further than people like Robert Mueller and James Comey to find it.
One of the oft-repeated criticisms of America is that it has too many lawyers. Maybe, but one of the country’s great strengths is its legal culture. As I’ve written before, Alexis de Tocqueville worried that without a class of patriotic and selfless aristocrats, the United States could fall prey to demagogues and populists. But he took comfort in the fact that, as he put it, American aristocracy can be found “at the bar or on the bench.” Tocqueville saw that lawyers, with their sense of civic duty, created a “form of public accountability that would help preserve the blessings of democracy without allowing its untrammeled vices.”
Comey’s memoir reveals that America does indeed have a deep state. It is one of law and lawyers. And we should be deeply grateful for it.
Before anyone jumps on Comey for the Clinton email fiasco, that's not what Zakaria is referring to. His focus is on Comey, as deputy Attorney General during the Bush era.
Many of the battles the Trump administration is having with the so-called deep state are reruns of battles from the Bush years. As Comey recounts in detail, after 9/11 the Bush administration put in place a surveillance program called “Stellar Wind” that Justice Department lawyers decided, on review, was illegal. Comey, who in March 2004 was deputy attorney general (and filling in for his boss, John D. Ashcroft, who was ill), refused to renew the program.
White House Chief of Staff Andrew H. Card Jr. and White House counsel Alberto R. Gonzales decided to head to Ashcroft’s hospital room to pressure him to sign the reauthorization documents, over Comey’s objections. On learning of this, Comey raced to the hospital and asked then-FBI Director Robert S. Mueller III to join him for moral support. It turned out Ashcroft didn’t need any prodding; he turned Card and Gonzales away. Mueller, who arrived a few minutes afterward, said to the bedridden attorney general, who was technically his boss, “In every man’s life there comes a time when the good Lord tests him. You passed your test tonight.” Comey writes that he felt like crying. “The law had held.”
Round Two happened over torture. The Bush administration wanted to claim that its “enhanced interrogation techniques” were lawful. Comey believed they were not, as did the chief counsel at the Justice Department, Jack Goldsmith. So Comey pushed back as much as he could.
In all of these cases, the pressure from the White House was intense, including a stunning exchange that Comey recounts between himself and Bush. “I say what the law is for the executive branch,” Bush explained to his sub-Cabinet appointee. Comey responded, “You do, sir. But only I can say what the Justice Department can certify as lawful. And we can’t here. We have done our best, but as Martin Luther said, ‘Here I stand. I can do no other.’ ”
That, ladies and gentlemen, is the true Deep State. It is the Rule of Law and the men and women who practice and uphold it.
Comey and Mueller were subordinates who owed their jobs to Bush, but also that they were Republicans. Yet the two of them have consistently put their obligations to the law and the country above personal loyalty and partisan politics.
This behavior may be a product of personal character, but it is also formed by legal training. The story is really not just about Mueller and Comey but about the lawyers in various parts of the government who believe that it is crucial for the country that the government operate within the law — even if the president wishes otherwise. Recall that when Trump wanted to fire Mueller last June, White House counsel Donald McGahn reportedly threatened to resign in protest.
Not all lawyers, by any means, are of that calibre but the best are. The rule of law frustrates and infuriates a good many politicians, Trump especially. Stephen Harper regularly lashed out when the rule of law, particularly Pierre Trudeau's Charter of Rights and Freedoms restrained his authoritarian excesses. Justin Trudeau was frustrated when the Supreme Court of Canada ruled in the
Carter case that assisted dying is a right protected by the Charter. All healthy liberal democracies have this same Deep State, the evolutionary successor to Runnymede. We should be grateful for that.
Take it from someone who served "the deep state" in Washington for 22 years: the rule of law in America is a joke. If you can afford enough legal representation you can even get away with treason (Scooter Libby). If you can't and you even mildly embarrass those in charge they will literally hold you without charges and torture you (Chelsea Manning).
ReplyDeleteComey is a disgrace. He should be indicted right along with Andrew McCabe for obstruction of justice, but I'll bet both of them walk away with a slap on the wrist, at best.
Is this a revelation or something?
ReplyDeleteComic book heroes Comey and Mueller to the rescue? The real deep state America should be proud of? Following the law like true patriots?
Good Lord, give me a break! My siblings comprise an eye specialist, a lawyer and an accountant; I'm an engineer. All governed by ethics in their charters, so I have a bit of a clue how the "real" professions try to gerrymander a portion of society for their own special influence, unassailable by plebs.
Hence I personally find this article embarassing and facile. Comey and Mueller appointed as minor saints? What a ridiculous proposition!
Thunder from your pulpit all you want. Diss me all you want. Luckily for all of us, your take on things is not definitive. Thank goodness.
BM
ReplyDeleteLike it or not, these events happened. Nixon's Saturday night massacre was thwarted by those who upheld the rule of law at the cost of their careers.
Comey and Mueller did stand up to Card and Gonzalez when they moved on Ashcroft. They knew what they were risking, their careers.
Rosenstein looks like a milquetoast but he's standing resolute against the pressure and abuses of Team Trump.
Tell me, BM, have you done as much? I would be fascinated to hear about it. Somehow your intemperance suggests you're shouting from the sidelines.
I have had experience of the College of Physicians and Surgeons, the Dental College and the Law Society. My direct, hands on involvement with those bodies has not given me the cynicism you carry in your screed.
ReplyDeleteKarl, it's one of the failings of the system that in most countries, democratic and otherwise, a person gets all the justice he can afford.
I was fairly expert in a couple of areas and routinely won my clients' cases. One of the reasons the led me to leave is that it got routine, predictable and, hence, boring.
I have my own opinions of the justice system in the United States. A Supreme Court "groomed" to reflect a political outlook is unable to deliver impartial justice. The Citizens United case is ample proof of that. Elected judges in state courts are a greater abomination as that invites all of the evils of campaigning and fundraising directly to the bench. That, to me, is incomprehensible.
That is not to say there aren't many fine individuals who take their solemn legal responsibilities and their oath to uphold and defend the Constitution quite seriously. The history of the presidency under Nixon, Bush and now Trump demonstrates that and should not be dismissed lightly.
Of course we don't tend to hear of most of them when they're told to clean out their desks and then escorted out the door.
Well, The Economist just downgraded the US from “Full Democracy” to “Flawed Democracy”, and it’s not like Trump alone is responsible for that. It’s a trend that has been going on for some time (and is happening all over the world in other countries as well, likely including our own). Suffice to say this version of the “deep state” isn’t pulling its weight anymore. (And I'm more in agreement with the above commenters regarding the actions of Comey. Whatever laudable actions he took under Bush, his putting his thumb on the scale in 2016 in violation of the FBI's own guidelines is more of a "deep state"action than doing his job properly and ethically.)
ReplyDeleteI also remember talking to guy who had packed up his desk and walked away from a job when the bosses asked him to do something he felt was against the ethics of the profession. He noted that by the time that decision came to him, he was old enough that his kids were on their own and out of university, he had a nice house, large savings and a pretty safe retirement pension and all the rest, so the cost of walking wasn’t all that bad. He left it an open question whether or not he’d have done the same thing 10 or 20 years earlier, possibly because even he was uncertain.