It was probably the most famous hospital visit since Bob Woodward snuck into the room of dying CIA Director William J. Casey in 1987. This time it was James Comey, a deputy attorney general, who in 2004 rushed to the bedside of Attorney General John Ashcroft and implored him not to reauthorize the government's warrantless spying program. Ashcroft stayed his pen — and Comey, having virtually committed an act of civil disobedience, became something of a Washington legend. He is now Barack Obama's choice to head up the FBI.
I applaud him with one hand.
Why the hesitation? Why in this moment of warrantless everything, a government scooping up our emails and, it seems, nighttime dreams, would I not cheer the nomination of someone who insisted on constitutional and legal limits on such a program? Because this is also the era of leak investigations in which the phone calls of reporters have been creepily noted, and one of them, Fox News' James Rosen, not only had his phone records filched but was cited as co-conspirator in an investigation of a State Department leak. The criminalization of investigative reporting, even when it is done by Fox News, is a bad, bad thing.
Into this mix of government spying and leak investigations steps Comey. Who is this fellow? He is the quintessential on the one hand and on the other hand guy — the one who stood up to the George W. Bush administration on the Constitution (yay!) but also authorized his friend, the Chicago United States Attorney Patrick Fitzgerald, to investigate who leaked the name of Valerie Plame. She was the CIA operative who suggested sending her husband, a diplomat, to Africa to see if Saddam Hussein was really buying uranium there. Plame's name was originally published in The Washington Post in a column by Robert Novak. It was hardly noticed.
This, though, turned out to be the mother of all leak investigations. A gaggle of reporters were implicated and threatened with contempt if they did not cooperate with Fitzgerald. One reporter, Judith Miller of the New York Times, went to jail for 85 days. She would not reveal her source or sources. While she knew about Plame, she had not written anything about her.
Miller had become reviled on the left because of her reporting on the run-up to the war in Iraq. Maybe for that reason, the outrage was muted. But her jailing was a classic example of a prosecutor running amok. Fitzgerald already knew the source of the original leak. Indeed, much of official Washington, including the odd crossing guard, knew it was Deputy Secretary of State Richard Armitage, a much respected diplomat who could not resist feeding a columnist a tasty morsel of news. (Such people go to heaven.) Fitzgerald persisted nonetheless. He would not be trifled with. He wanted his questions answered.
Comey was Fitzgerald's boss. He had appointed him and he should have reined him in. He did nothing of the sort. In fact, there is ample evidence that Fitzgerald was a prosecutor after Comey's own heart. Comey, too, is a hard-charger. The Wall Street Journal's editorial page compiled an impressive list of Comey's prosecutorial excesses, including the prosecution of two lobbyists for the American Israel Public Affairs Committee under the 1917 Espionage Act. The case was finally dropped, but not before both men lost their jobs, a whole lot of money and, I would suspect, a whole lot of sleep.
Prosecutors have enormous, virtually unlimited, power. A mere inquiry can change a life, even wreck it. FBI directors have even more power. The bureau's Washington headquarters is named for a man who exercised his power in highly questionable and certainly unethical ways. I used to write columns urging that J. Edgar Hoover's name be removed from the building. Now I want it to stay — a reminder of Lord Acton's wisdom: "Power tends to corrupt, and absolute power corrupts absolutely."
Comey has exercised his power in disturbing ways. Just as Barack Obama overlooked Eric Holder's role in the 2001 Marc Rich pardon, the president is now overlooking the warning signs in Comey's record — ticks of a disturbing zealotry. In a thoughtful article, Newsweek/Daily Beast writer Daniel Klaidman weighed the pros and cons of Comey and came down, a bit hesitantly I think, on the side of the pros. He finds Comey a man of absolute integrity, but rigid and moralistic. I agree with that, but subtlety and tolerance are needed as well in an FBI director. Comey is not a bad man, but this is a bad appointment.
Richard Cohen is a columnist for the Washington Post.