America’s deep state — of law and lawyers

By Fareed Zakaria, Thursday, April 19, 2018

The most remarkable parts of James B. Comey’s memoir are not about President Trump. We already knew most of the interesting revelations, and some of the others are gossip and color commentary. But in his discussion of the George W. Bush administration, Comey is far more revealing and highlights something crucial and hopeful about America: the role of lawyers and our legal culture.

Many of the battles the Trump administration is having with the so-called deep state are reruns of battles from the Bush years. As Comey recounts in detail, after 9/11 the Bush administration put in place a surveillance program called “Stellar Wind” that Justice Department lawyers decided, on review, was illegal. Comey, who in March 2004 was deputy attorney general (and filling in for his boss, John D. Ashcroft, who was ill), refused to renew the program.

White House Chief of Staff Andrew H. Card Jr. and White House counsel Alberto R. Gonzales decided to head to Ashcroft’s hospital room to pressure him to sign the reauthorization documents, over Comey’s objections. On learning of this, Comey raced to the hospital and asked then-FBI Director Robert S. Mueller III to join him for moral support. It turned out Ashcroft didn’t need any prodding; he turned Card and Gonzales away. Mueller, who arrived a few minutes afterward, said to the bedridden attorney general, who was technically his boss, “In every man’s life there comes a time when the good Lord tests him. You passed your test tonight.” Comey writes that he felt like crying. “The law had held.”

Round Two happened over torture. The Bush administration wanted to claim that its “enhanced interrogation techniques” were lawful. Comey believed they were not, as did the chief counsel at the Justice Department, Jack Goldsmith. So Comey pushed back as much as he could.

In all of these cases, the pressure from the White House was intense, including a stunning exchange that Comey recounts between himself and Bush. “I say what the law is for the executive branch,” Bush explained to his sub-Cabinet appointee. Comey responded, “You do, sir. But only I can say what the Justice Department can certify as lawful. And we can’t here. We have done our best, but as Martin Luther said, ‘Here I stand. I can do no other.’ ”

What is striking about these episodes is not only that Comey and Mueller were subordinates who owed their jobs to Bush, but also that they were Republicans. Yet the two of them have consistently put their obligations to the law and the country above personal loyalty and partisan politics.

This behavior may be a product of personal character, but it is also formed by legal training. The story is really not just about Mueller and Comey but about the lawyers in various parts of the government who believe that it is crucial for the country that the government operate within the law — even if the president wishes otherwise. Recall that when Trump wanted to fire Mueller last June, White House counsel Donald McGahn reportedly threatened to resign in protest.

Just before leaving the Bush administration, Comey gave a speech to the National Security Agency in which he said, “It is the job of a good lawyer to say ‘yes.’ It is as much the job of a good lawyer to say ‘no.’ ‘No’ is much, much harder. ‘No’ must be spoken into a storm of crisis, with loud voices all around, with lives hanging in the balance. ‘No’ is often the undoing of a career.”

One of the oft-repeated criticisms of America is that it has too many lawyers. Maybe, but one of the country’s great strengths is its legal culture. As I’ve written before, Alexis de Tocqueville worried that without a class of patriotic and selfless aristocrats, the United States could fall prey to demagogues and populists. But he took comfort in the fact that, as he put it, American aristocracy can be found “at the bar or on the bench.” Tocqueville saw that lawyers, with their sense of civic duty, created a “form of public accountability that would help preserve the blessings of democracy without allowing its untrammeled vices.”

Comey’s memoir reveals that America does indeed have a deep state. It is one of law and lawyers. And we should be deeply grateful for it.

(c) 2018, Washington Post Writers Group