If I were on the Senate committee voting to confirm the next director of the FBI, the very first question I would ask the nominee would be: "Much has been made of how highly President Trump values loyalty. With reference to the position to which you have been nominated, please provide us your understanding of what that term means. Does it refer to personal loyalty to the president? Loyalty to your oath of office? Or loyalty to the FBI as an institution?
If necessary, I would ask a follow-up: "Please answer the same question with reference to the FBI Director's relationship with the Attorney General. And how, exactly, would you go about resolving conflicts among these three forms of loyalty?
I would remind the nominee of the "Saturday Night Massacre" during the Watergate scandal — when both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than carry out what they regarded to be an illegal order from President Richard Nixon to fire Archibald Cox, the special prosecutor investigating the president.
So it fell to Robert Bork, the Solicitor General at the time — the government's trial lawyer — to make the call. Bork's loyalty was with Nixon first, so he went along with the president's wishes and fired Cox.
Considering Bork's role in this sordid episode calls to mind the life and times of the late Rex Lee. During his four years as Solicitor General under President Ronald Reagan, Lee compiled an enviable won-loss record, prevailing in 23 of the 30 cases he argued before the Supreme Court. Lee would resign his position, in part because he wasn't being paid enough (less than $60,000 a year) to send his kids through college, but mostly due to his views regarding those questions of loyalty listed above. Lee, a conservative Mormon, viewed himself to be an officer of the Court, whose job it was to look out not just for the interests of the administration, but for the entire nation. He resented the pressure being placed on him by the White House to take cases to the Court that, in his mind, were unworthy.
In other words, Rex Lee marched to his own professional and personal sense of propriety. As he famously put it, following his resignation, "I was the Solicitor General, not the Pamphleteer General."
My bottom-line question to the nominee: "Will you be a Robert Bork-style FBI Director, or will you follow Rex Lee's sense of independence?
This question, of course, leads us back to former FBI Director James Comey. Personally, I think he erred badly, first by lecturing Hillary Clinton after announcing that there was no basis for indicting her: He should have announced his decision, turned and walked away from the podium. Secondly, there was his dreadful handling of the late-breaking email non-story, which likely derailed Clinton over the campaign's final few days. Fence sitters were somehow moved to vote for Trump, overlooking everything that anyone who had followed his career already knew, culminating with the obscene "locker-room talk" episode, which spoke volumes about who Trump really is as a person.
Moreover, Comey's final testimony on the matter of why he sent news of those emails (which Clinton hadn't even written) to the Republican leadership was, in a word, pathetic. Honestly, was the man trying out for the role in the next production of Hamlet? Talk about a "to be or not to be" moment. His testimony was one long lament, in which the phrase "mildly nauseous" entered the American lexicon.
All these errors in judgment, it must be pointed out, helped Trump, not Clinton. Moreover, Trump did nothing to indicate that he had any problem with how Comey had conducted the Clinton probe, other than perhaps he was steamed that Comey hadn't indicted her. Indeed, he embraced Comey in the days and weeks after the election.
Until, that is — drum roll, please — the Russian probe. Comey wanted more money to expand the investigation, and say what you will about Comey's judgment (and I have), no one close to him has ever disputed his integrity. The only change was the Russia probe; Comey was getting too close to something. Maybe there's only embarrassment — we know that the Russians bug every room everywhere, so maybe they have some dirt on Trump, as that leaked "dossier" suggested. Or maybe Trump's debts to Russian oligarchs were coming into focus. Perhaps Comey was connecting the dots on how the Russians were coordinating illegally with the Trump campaign to help him win the White House.
We have learned a lot over the past week or so. We know we must learn whether the next FBI Director is going to be another Robert Bork, or aspire to be a Rex Lee figure, so senators can vote accordingly. And above all, we know for sure that President Trump wants all investigations stopped. But by firing Comey the way he did, Trump has all but ensured that they won't. ♦