James Comey’s curious and unorthodox contributions to the media’s rumor-fueled hysteria over the legitimacy of the Trump presidency—and perhaps the fate of the U.S. government and the American people—ought to raise a fundamental question in the minds of conservatives: Why did he have a job to begin with?
It matters little whether we like the tall man or not. Or whether or not we’re glad that his unusual appearances before Congress last year cast doubt in the minds of undecided voters upon the character of Hillary R. Clinton. We might find it curious that he held an accusation of obstruction of justice against Donald Trump in his back pocket until he was fired by the same. Or we might agree with the Tweeter in Chief that Comey is a showboat. Or we might believe he’s a clever intellectual for tweeting under the name “Reinhold Niebuhr,” the liberal theologian who also inspired Barack Obama, Jimmy Carter, and John McCain with his philosophy that admits no moral absolutes, yet requires every man to work to balance the scales of justice. (Comey wrote a college thesis on Niebuhr, contrasting his thought with Jerry Falwell’s.) We might agree with the Democrats that Comey both should and should not have been fired, or we might agree with the Republicans, vice versa.
But the biggest concern is not with the man but with the office—and the role it plays in American society and life.
The Constitution does not authorize the creation of a federal police force, because the whole idea is antithetical to our federal order, in which the designation of a federal crime pertains only to offenses against the very limited powers ceded to Washington by the states. With that in mind, in 1789 Congress created the Office of the Attorney General—a part-time job—“to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned.” There was no Department of Justice until Reconstruction, and there was no federal investigative bureau until the 20th century.
When you have a standing army (not to mention a lucrative military-industrial complex), you are tempted to think like Madeleine Albright: “What’s the point of having this superb military that you’re always talking about if we can’t use it?” Similarly, what’s the point of having an FBI director with 34,768 federal employees at his disposal, including “12,892 special agents, 2,999 intelligence analysts, and 18,877 professional staff”? (Lest we be distracted by a number that’s one short of 3,000, as a shopper would be fooled by a doorbuster flyer, we may remember that, in addition to the nearly 3,000 “intelligence analysts” under the director of the FBI, we also have a fully stocked Central Intelligence Agency, whose budget and employee numbers are not disclosed to the citizens who fund it.)
To whom is the FBI director accountable? As a member of the executive branch, he serves at the pleasure of the president, who appoints him and can fire him. The Senate must approve the appointment; Congress can impeach him for “high crimes and misdemeanors.” He “reports” to both the attorney general and the director of national intelligence, and is also “monitored” by House and Senate oversight committees. Yet he can apparently investigate whomever and whatever he wants, and any attempt to direct his activities (“I hope you can let this go”) amounts to obstruction of justice. This makes the FBI a de facto fourth branch of the federal government.
Before he heard via television that Donald Trump had said “You’re fired,” Director Comey requested for FY 2017 “a total of $9.50 billion in direct budget authority to carry out the FBI’s national security, criminal law enforcement, and criminal justice services missions.”
That’s quite a sum. Yet having a federal police power, even at discount prices, would still be a problem, because it virtually guarantees that the power will be exercised against taxpaying American citizens, who are often subjected to surveillance and on whom files are kept, a tradition begun by J. Edgar Hoover that famously included Elvis and Groucho Marx. It also supplements other encroachments upon our liberties by bolstering unconstitutional federal criminal prosecution of federalized crimes by a bloated Department of Justice in an equally bloated federal court system. Finally, it teaches Americans—and states—that the federal government is the be-all and end-all of law enforcement and security.
Did the despicable racist Dylann Roof really require an FBI investigation into his murder of nine innocent black churchgoers in Charleston? When he was still on the lam, the FBI, true to form, swooped in to aid in the manhunt; but it was local law enforcement in Shelby County, North Carolina, that apprehended him via a traffic stop. Also true to form, Loretta Lynch’s DOJ swooped in and charged Roof with 33 federal crimes, on top of the nine counts of murder and one count of possession of a firearm during the commission of a violent crime he was charged with by the state of South Carolina. Inevitably, the federal trial delayed the state trial, and the federal judge’s death sentence precipitated Roof’s offer to plead guilty in his state trial in order to avoid a second death penalty. South Carolina prosecutors accepted the plea deal because they did not want to put the victims’ families through a second ordeal.
Unless they get caught in the crosshairs of an FBI investigation, most Americans think nothing of the constitutionality of the FBI. In fact, they have been taught to revere the Feds by TV and movies, in which FBI agents are invariably depicted as superior—Olympic athletes and geniuses with the greatest technological weapons and immediate computer access to everyone’s personal data, always one step ahead of the local law-enforcement rubes who unjustly resent their presence. But reliance on federal omnipotence had the opposite effect in the case of Dylann Roof. Because of a misdemeanor drug charge he’d incurred months beforehand, he should never have been able to purchase the Glock 41 he used to murder his victims. Yet, during the investigation, James Comey admitted to the Washington Post that Roof “was able to purchase the gun used in the attack only because of lapses in the FBI’s background-check system.”
It may be difficult to imagine surviving these days without an FBI empowered to surveil mosques and keep files on Minnesota imams and the children of Muslim immigrants who make suspicious trips to visit our best friends in Saudi Arabia. Then again, the feds do not have a stellar track record in this regard, either. Indeed, the need for such surveillance is created by a federal government that is loath to curtail immigration, and federal courts that block any attempt to do so. Imagine what state and local law-enforcement agencies could do with the resources we blow annually on the FBI, especially if they did not live in fear of facing federal charges for federal “civil rights” violations whenever they do their jobs.
Aaron D. Wolf (1973-2019) was Chronicles' executive editor. His writings have appeared in numerous magazines and newspapers. He was a frequent guest on Issues, Etc. (Lutheran Public Radio) and The Paul Youngblood Show (nta.fm), and has appeared on several other radio programs, including The Tom Clark Show (Wisconsin Public Radio) and Extension 720 With Milt Rosenberg (WGN).