Take Care is privileged to publish this post by Shakeer Rahman, a recent Harvard Law School graduate who will be a civil rights lawyer at the Bronx Defenders starting this fall.
President Trump’s firing of FBI Director James Comey has quickly become part of a case for his impeachment. Critics warn that the president defied the important norm of FBI independence, while Trump’s supporters say Comey was playing politics and had to go. There is some truth in both views. No matter your views though, the firing was a reminder that all policing is to some extent political. It was also a rare example of a police force facing democratic accountability.
Although Watergate gave Americans good reason to fear politicians using security forces for personal ends, we should also be wary of police who are too independent from elected officials. That idea may seem like a hard sell now that Comey’s firing has reignited concern about potential White House corruption, and the appointment of Comey’s predecessor Robert Mueller as special counsel has provoked some celebration of independence in law enforcement.
But with so many norms being disrupted, it is hard to know where any of this could lead. Liberals who fear Trump leading a coup may be tempted to empower the security apparatus in ways that resemble the traditional definition of a coup. The ideal of police independence may seem comforting in times when one’s politics align with those of police. But in most times and for most people, that may not be true.
Comey’s short tenure leading the FBI shows how easily an independent FBI can threaten democracy. Two years ago Comey infuriated the Obama administration by criticizing the increased national attention to police violence. His public comments frustrated White House efforts to investigate local police departments and galvanize reform across the country. Police face too much scrutiny from politicians, Comey suggested. There is an irony there: Comey would soon trigger explosive debates about whether politicians face too much scrutiny from the police.
Comey’s later intrusions into the political fray proved more significant. As is now well known, Hillary Clinton surrogates have blamed Trump’s win on Comey’s actions, particularly his announcement in late October that the FBI had reopened its investigation into Clinton’s email practices. Whether it’s true or not that Comey swung the election, the mere risk that the federal government’s police chief influenced votes shows how dangerous it can be for police to make politically significant choices independent of politicians.
The Clinton investigation provides a useful mirror to the past few months. Some Republicans claim that the Russia investigation is partisan fuss over nothing, which is also what the Democrats said about the FBI’s scrutiny of Clinton mishandling state secrets. Both reactions are justifiable. How you define terms like “foreign adversary,” “reckless,” and “collusion” in the context of executive action may depend on your politics. Treating these questions as an apolitical matter of police expertise transfers power from elected officials to police, in ways that can harm both sides. Indeed just as liberals prayed that Comey would stand up to Trump, many in the FBI felt Comey had a duty to single Clinton out for criticism. Decisions that could have been made by actors who face political heat for their choices were instead left to police expertise.
None of this is to say that the FBI director intentionally tried to influence the election. Comey may well have made the best choice available to him. The problem was the stakes of the choices that were left to the FBI’s discretion. To put the point as bluntly as possible: if policing is going to influence democracy, that choice should be made by politicians, not left to police expertise. If Obama hid important news about the Clinton investigation and was then embarrassed by the news leaking, better his party pay for a choice their president made than for a choice made by someone viewed as too independent to challenge.
To be sure, the context of the Clinton investigation was complicated by the fact that some administration officials either seem to have prejudged the case or were personally linked to the target and her husband. But this unique circumstance was reason to alter the DOJ’s political command structure, not to take it out of the picture and make the FBI the investigation’s public face. As for Obama’s fear that Democrats might face backlash if he intruded on the investigations, this was a legitimate political concern. But that’s precisely the point. The investigations of both Clinton’s emails and the Trump campaign's Russia ties would inevitably have a political impact, and it is more democratic for politicians to be accused of politically motivated policing than for police to make political choices.
Investigations of politicians are not the only ones that have political consequences of course. Much policing is political, and all of it should be more responsive to democracy. Our legal system’s racial disparities in punishment are not the product of special expertise that politicians lack. To the contrary, they are a product of politics. Treating policing as apolitical allows elected officials to avoid answering for consequences like discrimination and excessive force. Imposing democracy on police and prosecutors is hard enough. Venerating their independence makes it harder.
For many, this election may have been the first hint of security forces meddling in politics. For others, the threat is more familiar. Though military coups are foreign to the US, police defiance of democracy is not. Take the example of New York, where police have time and again bullied mayors who tried to constrain them. In 1966, after Mayor Lindsay created the city’s first civilian board to review police, 5,000 officers swarmed City Hall in protest. The board only lasted a few months. When Mayor Dinkins revived it in 1992, police mobbed City Hall again. One of the speakers at the rally was Rudy Giuliani, whose election the next year led to harsher policing. Mayor de Blasio vowed to reverse those trends. Police responded with a work stoppage and protests at a funeral. With his term nearly over, the mayor has achieved little of what he pledged.
The Democrats’ about-face on Comey (demanding his ouster one day, calling him irreplaceable the next) reflects a dynamic similar to one those mayors face. Critics of policing are often told that police are too essential to question. And politicians hoping to constrain security forces can be humbled by popular esteem for police and the military. Trump defied that worry. Yes, he did so for personal reasons. But those who voted for him might agree with the White House that Comey’s partisan “grandstanding” was threatening the nation’s diplomatic interests. The administration’s claim that Comey was fired for mistreating Clinton may seem absurd, but it contains an important truth: Democrats were the first to accuse Comey of playing politics. Unlike them, Trump did something about it.
Trump had every reason to fear that Comey would use his storied independence to frustrate another White House—his White House. No matter how much you distrust Trump, the FBI’s pretense of independence should be reason for worry. Police and prosecutors are not judges. They should answer directly to the politicians we elect to oversee them, not chase their own notions of political independence. It’s true that we sometimes protect civil servants from firing to keep them independent from politics. But the FBI director was never meant to be untouchable in this way, and it takes considerable amnesia to see the agency’s history as apolitical.
Stronger presidential control of the FBI will not place Trump above the law. If the president violates the constitution, those aggrieved can confront him in court. But everything short of that remains for Congress to resolve. That might seem hopeless with the same party controlling both political branches, but there is precedent for bipartisan congressional investigations of Republican presidents, including on complex issues like Watergate and Iran-Contra. Trump may well have colluded with foreign foes to win the election. But he won, so the government became his. Now it’s up to Congress to decide what’s too much.
What if Congress just looks the other way? Many have warned that congressional inaction in these circumstances would mean a constitutional crisis. That’s one way to look at it. Another is that Americans do not care enough about these issues. New revelations about chaos and corruption in the White House might shift people’s views. But we also need to accept that Americans may just care more about building that wall and draining that swamp than about the things that alarm pundits. Even complex issues should be explained to the public better, not trusted to supposedly apolitical expertise. Policing – even of the president – ought to reflect public will.
If Obama was right to fear backlash from politicizing the FBI, Trump and his party will now face the same. If Obama was wrong though, perhaps Republicans saw something that others missed: policing is always political, and those who pretend otherwise do democracy a disservice. Americans who fear an FBI fully at the current president’s disposal should demand a weaker national police, not a more defiant one.