Cross-posted from Dorf on Law
As a college student in the early to mid-1980s, I knew Kris Kobach because we were on the debate team together. I'm a couple of years older than Kobach, but he started debating as a freshman, so I had two full seasons to get to know him. I recall him as smart and genial. He was conservative but in what at the time struck me as a middle American country-club Republican sort of way. I did not hear from Kobach again until the mid to late 1990s, when he was a junior faculty member at the University of Missouri-Kansas City. He contacted me to talk about an academic paper he was working on. It was very much a scholarly rather than polemical exercise. We had a pleasant substantive exchange, which confirmed my earlier impression of Kobach.
Thus, I was very surprised when, a few years later, Kobach emerged on the national political scene as the evil genius behind many of the state-level efforts to crack down on undocumented immigrants. At first I thought there must be some mistake. Maybe this was a different Kris Kobach? Or maybe his views were being reported inaccurately in the press? But eventually I bowed to reality. Either I had been profoundly mistaken about Kobach all along or at some point he had transformed himself. Accordingly, I have no illusions that in his role as the Vice Chair of the Advisory Commission on Election Integrity Kobach will be anything but a champion of disenfranchising minority voters via Trumped up claims of voting fraud.
I relate the foregoing personal anecdote because it may bear on how to think about people with good intentions and reputations for integrity who take at-best questionable actions. When do their actions demonstrate that (as in Kobach's case) whatever they might have been in the past, they are now villains? When do their curious actions reveal them to be careerists? And when does the sacrifice of personal reputation serve a greater good? I'll explore these questions with regard to Rod Rosenstein, James Comey, and H.R. McMaster.
As was widely reported, Rosenstein was confirmed as Deputy Attorney General with broad bipartisan support based on his reputation as an apolitical career prosecutor with a strong commitment to following and applying the law fairly. It took less than three weeks of employment within the Trump administration for that reputation to be called into question when President Trump, Attorney General Sessions, and various Trump mouthpieces invoked Rosenstein's memo decrying Comey's mishandling of the investigation into Hillary Clinton's emails as the cover story for Trump's firing of Comey. As cover stories go, this was preposterous and, sure enough, within a day Trump himself blew it up by proudly declaring to Lester Holt that he was going to fire Comey regardless of what Rosenstein recommended, based in part on the "Russia thing."
What are we to make of Rosenstein's participation in the ineffective ruse? Last week he told the full Senate that when he wrote his memo he already knew that Trump was going to fire Comey. So why did he write the memo? Rosenstein has offered a vigorous defense of the substance of the memo, but that hardly explains or excuses his writing it under the circumstances when he did. Consider an analogy: If you are the supervisor of an employee with a record of tardiness and you know that your boss wants to fire the employee because of racial animus, writing a memo to the boss detailing the employee's tardiness makes you complicit in the racially biased discharge, even if you later claim (as Rosenstein told the Senate about his memo regarding Comey) that your memo was "not a statement of reasons to justify a for-cause termination."
I don't know Rosenstein personally but we were contemporaries in law school and so a number of people whose judgment I respect do know him. At least one such person has great faith in Rosenstein's integrity, arguing that Rosenstein must have participated in the Comey-firing ruse for noble purposes. It's possible to imagine that. Maybe Rosenstein figured that there was nothing he could do to stop Trump from firing Comey, but that by writing the memo rather than resigning in protest, he could preserve his position and thus do some good--for example, by appointing Robert Mueller as special counsel. After all, the memo itself is not wrong in its assessment of Comey's errors of judgment, so Rosenstein could have told himself that the illicit use of the memo by Sessions and Trump was on them.
Indeed, there's even a heroic version of that story. In it, Rosenstein anticipated that his own reputation would be tarnished by his participation in the Comey-firing ruse and only partially rehabilitated by the subsequent appointment of the special counsel, but Rosenstein took the hit anyway for the good of the country.
Maybe, but maybe not. Ben Wittes reports that Comey said of Rosenstein (before Rosenstein rationalized Comey's firing): "Rod is a survivor." Wittes adds that "you don’t get to survive that long across administrations without making compromises." So maybe the most straightforward explanation is right: Rosenstein is a generally honorable fellow who either displayed incredible naiveté or made a serious error of judgment by caving to pressure from the White House, and only after the resulting firestorm threatened to engulf him did he bow to the external pressure to appoint a special counsel.
Another problem with the idea that Rosenstein was taking one for the team is that people with reputations for integrity often cultivate them. That's not to say that they lack integrity. But it is to say that Comey and Wittes might have it somewhat backwards. Making at least small compromises is what people of good will who are not trying to impress everyone with their integrity do all the time.
Any adult with substantial experience in any organization that operates roughly by consensus will be familiar with the phenomenon. Someone proposes doing something that you think is a bad idea; you voice your concerns; your colleagues or your boss hear you out but they say that they want to proceed anyway; you could make a big stink but you conclude that this is not a question of life-or-death or a fundamental principle, so you go along. The sort of person who always stands up for principle is a gadfly at best and often an asshole.
How does someone who is not widely perceived as a gadfly or an asshole develop a reputation for being a person of great principle and integrity? Essentially by curating his reputation. As numerous commentators have noted, that's more or less what Comey has done--leaning very hard on the tale of the hospital visit.
To be clear, I'm not arguing that Comey did not act honorably and with integrity back in 2004, when he blocked the effort of Alberto Gonzales and Andrew Card to reauthorize an illegal surveillance program. He acted honorably. What I am saying is that Comey seems like the sort of person who pays a great deal of attention to his own reputation. And that accounts for his worst sin: Because he didn't want to look like he had acted unfairly to influence the election by sitting on the Anthony Weiner material, he in fact unfairly influenced the election. The cultivation of the appearance of integrity can sometimes be inconsistent with actually acting with integrity.
Again, to be clear, I do not mean to say that Rosenstein or Comey is especially shady. From what I know, each has earned his reputation for being a generally fair and trustworthy professional. But human nature being what it is, I think one ought to be skeptical of claims that anyone is extraordinarily fair and trustworthy. Such claims tend to be the result of careful attention to the cultivation of an image. That image need not be at odds with the underlying reality, but one should not mistake it for the entirety of the reality.
To summarize the score so far: Kobach is a villain; Comey and Rosenstein want to be seen as heroic self-sacrificing patriots and to some extent they may well be, but their attention to cultivating their respective reputations for integrity means that each is at least partly a careerist. What about McMaster?
Widely admired as someone who would provide internal resistance to Trump based on his long career and especially his book Dereliction of Duty, McMaster risked his reputation when he went full Spicer with a nondenial denial of the report that Trump divulged information to the Russian ambassador and foreign minister that compromised the sources and methods of an Israeli counterterrorism operation. As Prof. Buchanan noted on this blog on Thursday, this was a somewhat careful lie but a lie nonetheless.
Has McMaster gone over to the dark side? Is he simply trying to keep his job? If so, is he doing so with the most noble intention--allowing his reputation to be besmirched so that he can continue to be an internal influence for sanity within the Trump administration?
Whatever the answer with respect to McMaster, one ought to be at least a little wary of the sort of compromise we can imagine that he and perhaps Rosenstein have made. I said above that never compromising is the sign of a gadfly or an asshole. That's true within generally virtuous or even generally non-evil organizations. But a different calculus applies in awful organizations.
If you find yourself working in an awful presidential administration, you can rationalize that you need to go along with and even participate in some terrible things so as to preserve your position in the awful administration, rather than resigning only to see yourself replaced by a spineless hack. That way, you tell yourself, you will be ready to provide internal resistance when the chips are down. The problem with this approach is that if you rely on it too often, you become the spineless hack