It ought to go without saying that one of the duties of the office is that when asked to do something illegal or unethical — even if the request comes from the president himself — you try to stop it from happening. If you can’t prevent wrongdoing — if you can’t faithfully perform the duties of the office without “mental reservation” (as the oath of office says) — you resign.
Richard Nixon’s top officials had this amount of courage. Clearly, as it becomes apparent that Attorney General Jeff Sessions and his Justice Department were willing White House accomplices in Tuesday's firing of FBI Director James Comey, Donald Trump’s do not.
Trump’s tendency to surround himself with yes men and force them to compete for his favor is well known — it’s a core feature of his management style. But while it’s been clear since inauguration that this tendency has infected the functioning of the White House, it’s only now becoming apparent that it’s infected the basic functioning of the entire federal government.
People whose loyalty to government precedes loyalty to Trump are distrusted and, often, pushed out. Those who are brought in — even if they appear from the outside to be statesmen — can be counted on, when the chips are down, to put their loyalty to Trump first. The Trump administration, broadly construed, cannot be trusted; it’s up to the career civil servants below them in the executive branch to protect the federal government’s remaining integrity.
Sessions and Rosenstein allegedly invented a lie to satisfy Trump
On May 9, after two weeks on the job, Deputy Attorney General Rod Rosenstein wrote a memo to Attorney General Jeff Sessions about how James Comey had undermined the public’s trust in the FBI by mishandling the investigation into Hillary Clinton’s use of a private email server in 2016. Sessions immediately sent the memo to Trump with a cover letter recommending Comey be fired; Trump fired Comey the same day, with his own letter, and notified him only after the fact — Comey learned of the firing himself only after seeing the news on a television screen. (You can read Andrew Prokop’s full explainer on the firing here.)
No one — even the White House itself — pretends this is the whole story.
It would be hard enough to believe that the firing of Comey over a 2016 investigation was so urgent that it had to be announced before Comey himself could be told. It would be harder still to believe that the firing offense was something that both Trump and Sessions praised at the time — both Comey’s initial characterization of Clinton’s email setup as “extremely careless” during a July press conference announcing the closure of the investigation and his decision to reopen the investigation in October, days before the election, when potential new evidence was discovered.
But as it is, it’s impossible to believe because the White House isn’t even trying. President Trump on Wednesday, when asked why Comey was fired, said vaguely that he “wasn’t doing a very good job,” with no reference whatsoever to the email investigation. Deputy press secretary Sarah Huckabee Sanders told reporters Wednesday that Trump had been considering firing Comey since the election.
And immediately after news of Comey’s firing became public, reporters at multiple outlets started hearing a very different story about what had happened from White House staff.
According to reports from the New York Times, Politico, and others, the decision to fire Comey came from Trump himself several days ago. Trump was reportedly infuriated by continued attention to the FBI’s investigation into potential ties between his presidential campaign and the Russian government, and had focused that anger toward Comey. The Times reported that Sessions was tasked with finding a reason to fire someone Trump already wanted gone.
The bottom line is that Rosenstein and Sessions gave President Trump what he wanted: a bipartisan pretext for a decision to fire a government official who also happened to be investigating Trump’s campaign.
Most executive branch officials deserve some presumption of independence. The Trump administration has lost it.
There are multiple reasons for civil servants to take jobs, and until Tuesday it appeared to be the case that at least some of Trump’s appointees had their own agendas — and values that might take precedence over loyalty to Trump.
Jeff Sessions, for example, was a known Trump ally, and more than happy to defend Trump against allegations of conflicts of interest or improper involvement with Russia. But Sessions was also an ideologue, committed to punitive criminal justice policies and reduced immigration. It’s Sessions’s ideology that led him to support Trump to begin with.
Sessions’s appointment as attorney general wasn’t initially seen as an attempt by Trump to install a yes man in the role (as, say, appointing Rudy Giuliani would have been). Rather, it was seen as an opportunity for Sessions to remake federal law enforcement in his image.
That’s what he’s done. And when, briefly, concerns about Sessions’s own ties to Russia threatened to distract from that — when Sessions’s independence on the question of open investigations of the president and his allies was examined — Sessions quickly resolved those questions by recusing himself from the Russia investigation. It was the act of someone who wasn’t primarily in his role to defend the president.
But when reportedly asked to find a reason to fire Comey, Sessions wasn’t willing to say no.
Rosenstein’s involvement is surprising for different reasons. Rosenstein had a long and distinguished career in law enforcement (at the Department of Justice and as a US attorney in Maryland) before being named Sessions’s deputy. His reputation was so bipartisan and sterling that people who’d been concerned about the Trump administration expressed relief when Rosenstein was named — believing that he would keep the Department of Justice more committed to the rule of law than the greater glory of Donald Trump. Instead, he lent his reputation to a cover-up.
Sessions and Rosenstein may have agendas for what they want to accomplish at the Department of Justice that go beyond Donald Trump. But instead of allowing them some degree of independence from him, they’ve allowed those agendas to get subsumed. The rule of men has triumphed.
The political levels of the executive branch cannot be trusted, and it’s up to the civil service
The principle of “rule of law, not rule of men” is baked into the American federal government. Since 1789, government officials have derived their authority from the Constitution, not from the head of state. Executive branch appointees like the attorney general and his deputy might “serve at the pleasure of the president,” but the oath they take when they’re sworn into office swears allegiance to the Constitution and the “duties of the office” rather than to the man who appointed them.
If officials appointed by Trump can’t be trusted to have any loyalty beyond Trump, officials who preceded Trump appear to be getting weeded out.
This isn’t just about Comey, or about former Deputy Attorney General Sally Yates, or about former US Attorney for the Southern District of New York Preet Bharara — all three of whom have been fired after investigating Trump. It’s not, in other words, just a matter of people who were involved in investigations of Trump or his associates. It’s about Surgeon General Vivek Murthy (fired without notice in April), and the director of the Census Bureau (who resigned Tuesday), and the dozens of other US attorneys fired without notice the same Friday afternoon that Bharara was.
All of these officials serve at the pleasure of the president. But the urgency with which Trump’s administration has pushed out people without having their successors lined up has uneasy resonance with the campaign promise to “drain the swamp” and the rhetoric of some Trump allies that the federal government itself constitutes an anti-Trump “deep state.”
And it’s all the more alarming when even the most respected Trump administration appointees, like Rosenstein, appear unwilling to stand up to the president.
The good news for, well, the functioning of the American government is that the Trump administration can’t literally fire every single government employee. There’s only so far they can go in the organizational charts of any given office before they hit the rock stratum of the civil service — people whose oaths and organizational accountability are both independent of the political class.
Political appointees are supposed to be entrusted with the strategic decisions of the government. But when there’s legwork involved, that falls to people who have different incentives.
In some cases, civil servants’ cooperation is needed to make a lie stick: trying to come up with evidence that President Obama tapped the phones at Trump Tower, for example (something Trump was reportedly angry that Comey’s FBI didn’t help him prove). In other cases, they have the power to demonstrate that the official explanation for something is a lie — like the anonymous Department of Homeland Security and Department of State employees who leaked documents to news outlets as the Trump administration worked on revising its travel ban, demonstrating that — despite what the administration would later claim — there wasn’t a solid national security case for picking the particular countries Trump wanted to ban.
The possibility of the federal government puttering along fine without Trump is, at this point, destroyed. The people giving the orders are compromised, or else can’t be assumed to be around long. The choice facing the people given the orders is insubordination — dysfunction — or compliance and corruption.
It’s a horrible choice. But it’s the choice that’s left.