The phrase “we are a nation of laws, not men” gets quite a workout in weeks like this one. It is said as a reminder, as an insistence—and as a hope that it’s still true. It means that our laws and institutions are greater and more important than the individuals who people them at any given moment, and it expresses the principle that best explains how we’ve managed to survive as the world’s longest-lived republic.
A constitutional crisis started Tuesday night when President Trump fired James Comey. Arguably it started before, but it certainly started Tuesday evening. Comey was the third of three people who were investigating aspects of the Trump administration or campaign and the ties to, dependency on, or favors perhaps owed to Russia. All three have now been fired (Sally Yates and Preet Bharara are the other two).
This is not going away. Trump can scream as long as he wants at all the TVs he wants. This is a scandal, and an obviously legitimate one. But unfortunately, our laws and institutions are only as good as the men and women sworn to uphold them. How this crisis is investigated, considered, and resolved will depend not on our laws and institutions, but on the men and women who enforce and defend them.
The fate of the republic, then, may hang on five men—or possibly four men and a woman. That sounds ominous and overwrought, that “fate of the republic.” Maybe so. But to dismiss this as normal politics is to be insouciantly and naively under-wrought. Nothing is normal about this president or many of the aides he has around him. The only people in the world he’s truly praised are dictators. If he could, he’d become another Putin—maybe not having people killed, but certainly criminalizing opposition to him in some fundamental way.
Trump has to be stopped, and he has to be stopped by other men and women. Here are the five in whose hands this rests. This will not, by the way, read as a reassuring list, except for No. 5. And it is not intended to.
1. The new director of the FBI. Who will it be? The general thinking is that if Trump is going to bother to make a move as scandalous as he just did, he did it in order to appoint someone who will simply shut down any investigation—devote no resources and personnel to it. Rudy Giuliani? Chris Christie? David Clarke, that Milwaukee chief of police who’s a total Trump loyalist and to the right of Attila the Hun?
On the other hand, Trump could decide, as he surveys the negative fallout from his move, which is apparently a shock to him (telling: he simply doesn’t see the basis of the principled objection to a president firing an FBI director who’s investigating him!), that he ought to appoint someone more establishment. A law-enforcement professional. Someone with Washington Republican cred.
If we’re fortunate enough to get such a person, he or she will have to do his or her job and prove that the great vaunted Federal Bureau of Investigation is not the handmaiden of any president. That we are, in other words, a nation of laws, not men.
2. Rod Rosenstein. He and he alone has the power to appoint a special prosecutor. That’s usually the attorney general’s call, but Jefferson Beauregard Sessions has recused himself on this matter. So it’s up to his deputy, and that’s Rosenstein.
Democrats spent Wednesday, I was told, trying to figure out what points of leverage they may have on Rosenstein. There are really only two: popular opinion, and his conscience. Recent polling tells us that about two-thirds of the public prefers a special prosecutor to this being left to Congress. So that’s clear.
As to Rosenstein’s conscience… I am told he’s always had a good reputation; liked, for example, by many Democrats who’ve known him for a long time, like Barbara Mikulski. But the writing of this letter was a rancidly conscience-less act. It has shocked people who’ve known him for a long time, like Lawfare’s Benjamin Wittes.
Is Rosenstein Elliot Richardson, or is he Robert Bork? He’s well aware of how each has gone down in history. Richardson is an American hero; Bork, a mere ideological one.
3. Mitch McConnell. You thought I was going to say Richard Burr, the North Carolina Republican senator who chairs the Intelligence Committee. And yes, he’s 3a, I guess. But from everything we know about the Senate GOP caucus, we have reason to believe that final calls on what gets revealed and what doesn’t will fall to the majority leader.
Will McConnell be willing to let the investigation go wherever the trail of evidence leads? Will he decide ultimately that a conservative Supreme Court and his cherished goal of the end of any campaign finance restrictions must take a back seat to executive branch abuse of power, if it comes to that? Will he act in such a case as forthrightly as did GOP senators Barry Goldwater and Hugh Scott, who went to Richard Nixon on Aug. 7, 1974, and told him the jig was up? McConnell is said to revere the traditions of the Senate and as a young man worked for one of the most admirable senators of the 20th century, a moderate Kentucky Republican named John Sherman Cooper.
But that was a long time ago in a galaxy far, far away. The more recent track record is not encouraging.
4. Bob Goodlatte. The Virginia House Republican chairs the Judiciary Committee—that is, the committee where impeachment proceedings originate. If the evidence demands it, would Goodlatte call for such proceedings?
He is arch-conservative. And if you’re interested, go look up the GOP membership of the committee. It’s like Alex Jones named them: Steven King, Louie Gohmert, Trey Gowdy, Blake Farenthold, Jason Chaffetz (although I guess somehow he’s become a cuck now). As for Goodlatte himself, back in January, he lent some committee staff to the Trump administration to help draft Trump’s executive order on refugees and immigration.
Think he’ll rise to the occasion, if the occasion demands it?
5. Marty Baron. He doesn’t belong in this rogue-ish gallery, but I invoke the belaureled (and deservedly so) editor of The Washington Post as kind of a stand-in for the Fourth Estate more generally. Baron and the Post’s other honchos decided to put “Democracy Dies in Darkness” right there at the top of the website, under the paper’s name. Having done that, they need to earn having done it. And The New York Times and CNN and everyone else has to rise to this moment.
Though the times are mad, history is, in one sense, being unusually kind to us. Rarely are choices this clear. Rarely is the divide between the right path and the wrong path so obvious, and rarely are the rationalizations of power so obvious and decadent. Laws or men? In two or three years, we’ll know.