In Trump's Tussle With James Comey, You Should Hope Everybody Loses

The administration is pursuing a vendetta, but Comey and the FBI deserve scrutiny and reduced stature.

Two things can be simultaneously true. One is that President Donald Trump and his aides are petty, vindictive people who, like other members of the political class, misuse power to punish opponents. The other is that some of their targets currently or recently within government are abusive, untrustworthy, and should be held to account. That brings us to former director of the Federal Bureau of Investigation (FBI) James Comey and the law enforcement agency he once led. Comey's indictment is undoubtedly an act of political payback. But Comey and his agency really are dangerous and worthy of scrutiny and deprivation of power to prevent future harm.

When Charges and Grievances Don't Quite Match

As anticipated, last week the Department of Justice (DOJ) issued an indictment of former FBI Director James Comey, charging that "the defendant, JAMES B. COMEY JR., did willfully and knowingly make a materially false, Fictitious, and fraudulent statement…by falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he, JAMES B. COMEY JR., had not 'authorized someone else at the FBI to be an anonymous source in news reports' regarding an FBI investigation concerning PERSON 1."

Comey faces charges under 18 U.S.C. § 1505, obstruction of a federal proceeding, and 18 U.S.C. § 1001(a)(2), involving false statements to a branch of the federal government. He could be penalized with a fine and up to five years in prison.

As Sen. Ted Cruz (R–Texas) points out, the issue is whether Comey or former FBI Deputy Director Andrew McCabe lied when McCabe claimed his boss authorized him to leak details of investigations to the press and Comey, under oath, denied doing anything of the sort.

Complicating the case against an allegedly crooked former federal official is that Trump and company despise Comey. They blame him for the FBI's fruitless pursuit of alleged Russan collusion by Trump based on the bogus Steele dossier. Those grievances aren't (overtly) in play in this indictment, but you wouldn't know that from the Justice Department's public preening.

"For far too long, previous corrupt leadership and their enablers weaponized federal law enforcement, damaging once proud institutions and severely eroding public trust," said current FBI Director Kash Patel. "Nowhere was this politicization of law enforcement more blatant than during the Russiagate hoax."

The president celebrated the indictment by posting that Comey "is a Dirty Cop, and always has been."

Trump's comment strongly suggests animus behind the charges against Comey. Patel's words point to complaints about the former director that appear nowhere in the indictment. That's a problem for prosecutors on top of the challenge of figuring out which of two officials meeting privately decided leaking information to the press was a swell idea. But whether or not the DOJ can successfully pursue this case, there's plenty of reason to hold a dim view of Comey.

Comey's History of Failings, and the FBI's

"Comey violated FBI policies and the requirements of his FBI Employment Agreement when he sent a copy of Memo 4 to [Columbia Law Professor Daniel] Richman with instructions to provide the contents to a reporter," the Justice Department's Inspector General concluded in a scathing 2019 report. (Memo 4 detailed Trump's request that the FBI drop its probe into former National Security Adviser Michael T. Flynn's role in the since-debunked Russiagate.) "By not safeguarding sensitive information obtained during the course of his FBI employment, and by using it to create public pressure for official action, Comey set a dangerous example for the over 35,000 current FBI employees—and the many thousands more former FBI employees—who similarly have access to or knowledge of non-public information."

Four years later, following up on the Russiagate investigation, a report by Special Counsel John Durham found, "there is a continuing need for the FBI and the Department to recognize that lack of analytical rigor, apparent confirmation bias, and an over-willingness to rely on information from individuals connected to political opponents caused investigators to fail to adequately consider alternative hypotheses and to act without appropriate objectivity or restraint in pursuing allegations of collusion or conspiracy between a U.S. political campaign and a foreign power."

That's bad enough when it comes to the FBI picking sides in political battles. But Durham's report also found that FBI agents pursued a high-level investigation "based on raw, unanalyzed, and uncorroborated intelligence" and "did not genuinely believe there was probable cause" when pursuing and implementing Foreign Intelligence Surveillance Act surveillance warrants in its investigations.

This is an ongoing problem. In 2023, unrelated to partisan political shenanigans, the U.S. government's Privacy and Civil Liberties Oversight Board found that Section 702 of the Foreign Intelligence Surveillance Act "poses significant privacy and civil liberties risks." In particular, the board warned that the "FBI's querying procedures and practices pose the most significant threats to Americans' privacy" because the Bureau used powers intended for foreign intelligence work to snoop on Americans.

Overall, the conduct of recent years suggests that from the top down, the FBI is prone to deciding who the bad guys are ahead of time. It then conducts ensuing investigations in ways intended to fulfill expectations—even if rules and protections for civil liberties are violated along the way.

Again, this isn't new. In 1976, the U.S. Senate's Church Committee warned the FBI "has placed more emphasis on domestic dissent than on organized crime and, according to some, let its efforts against foreign spies suffer because of the amount of time spent checking up on American protest groups." The committee's report added, as operations developed "rationalizations were fashioned to immunize them from the restraints of the Bill of Rights and the specific prohibitions of the criminal code."

The targets change depending on internal politics at the FBI, but the abuses remain familiar.

Partisan Policing as a Blue-and-Red Team Sport

There are high costs when cops and prosecutors are seen as deeply politicized. Polls now find approval of the Department of Justice wildly flipping depending on who holds power. According to Pew Research, "51% of Republicans and Republican leaners now rate the DOJ favorably, up 18 percentage points from last year. The trend is the opposite among Democrats, and the movement sharper: 28% of Democrats and Democratic leaners view the DOJ favorably, down 27 points from last year."

This coincides with the transition from Democratic President Biden to Republican President Trump. Americans are cheerleading for powerful government agencies based on whether their team calls the shots and can use state power to punish enemies.

The Trump administration's targeting of Comey based on a political feud is inappropriate and dangerous. So are the FBI's long politicization and willingness to ignore civil liberties to go after partisan targets. If we can't have neutral, nonpartisan federal agencies—and that's obviously a vain dream—we'd all be better off if both prosecutors and federal agents were far less powerful.