They both acted with sincere motives as patriots to prevent harm to the United States of America.
National Security Agency contractor Reality Winner is accused of leaking information to the media, because, it is argued, Winner believed this information demonstrates that the November 2016 election was fraudulent and therefore President Donald J. Trump is illegitimate. Winner is confined in a Federal prison in Georgia.
Former FBI Director James Comey has admitted that he leaked information to the media because, it is argued, Comey believed this information demonstrates Trump is suspect of interfering into an investigation of the allegation that the November 2016 election was fraudulent and therefore the president is illegitimate.
According to some, Comey is in legal jeopardy of 18 U.S.C. 641, which says it is “a crime to steal, sell or convey any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”
For the purposes of this exploration, I will accept the worst-case scenario about the Trump Administration that motivated Winner and Comey to act.
I will accept that the November 2016 election was fraudulent, because of the hostile interference of a foreign power, Russia. Winner’s information illustrates how it might have been done.
I will accept that Trump colluded with the foreign power to steal the election from Hillary Clinton. Comey’s information illustrates how the president continues to cover up the conspiracy.
I will accept that Trump is an illegitimate chief executive who has broken the law he is sworn on a Bible to uphold.
I will accept that the Constitution is under attack by Russia and its agents in the Trump Administration, including Attorney General Jeff Sessions, Vice President Michael Pence, Senior Advisor Jared Kushner, and Chief-of-Staff Reince Priebus, all acting in continuation of the plan initiated by former National Security Adviser Michael Flynn.
To halt this worst-case, Winner provided the public the knowledge it needed to see that Russians agents hacked and changed the election results.
To halt this worst case, Comey acted not only to present the public with facts about the president’s corrupt acts, but also to move the federal apparatus under the weight of public opinion to appoint a special counsel to investigate and solve the crimes with the likely severe consequences of impeachment and removal from office of both the president and vice president.
Presuming all this, I accept that we are now plunged into a constitutional crisis.
Is there precedence for the next steps? Many choose the Watergate scandal as a roadmap. It does look that the nation is embarked similarly with the appointment of Special Counsel Robert Mueller.
However, my choice for precedence is the constitutional crisis is the 1850s, the decade before Fort Sumter. The nation was divided into two warring camps, the slave power and the abolitionists, that each refused to compromise, just as the country today is divided into two warring camps that reject compromise—those who supported Clinton and “Stronger Together,” and those who supported Trump and “Make America Great Again.”
My choice for the precedence of the actions by Winner and Comey is the series of sensational acts of lawless defiance by both sides in the 1850s, from the Fugitive Slave Act of 1850 to the caning of William Sumner and the raid on Lawrence, Kansas, in 1856 to John Brown’s Raid at Harper’s Ferry in 1859.
What ignited all that tragedy was the artful and angry U.S. Senate debate that became known as the Compromise of 1850.
In truth, it was no compromise. It set the two sides against each other in competing for new states to come into the Union as either slave or free.
But within that debate was a very famous moment on March 11, 1850, when William H. Seward of New York rose to make his maiden Senate speech that was immediately afterward celebrated as the “Higher Law Speech.”
The presenting issue was whether or not California would enter the Union as a free state
This was the last battle between the Southern Slave Power, represented by the titanic and dying John C. Calhoun of South Carolina, and the compromising way of the West, represented by the dying “Great Compromiser” Henry Clay of Kentucky.
Seward spoke specifically against the South and slavery and in favor of California entering as a free state. But he also spoke comprehensively of the fact that, though the Constitution of 1789 seemed to permit slavery, there was a “higher law” for the people of the United States to obey:
“It is true, indeed, that the national domain is ours. It is true that it was acquired by the valor and with the wealth of the whole nation. But we hold no arbitrary authority over it. We hold no arbitrary authority over anything, whether lawfully acquired or seized by usurpation. The constitution regulates our stewardship; the constitution devotes the domain to union, to justice, to defense, to welfare and to liberty. But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes.”
Here is the precedent that Winner’s and Comey’s conduct reflects.
Recognizing their personal vulnerability, they each moved to obey a “higher law” than the Federal laws about removing Federal property in order to leak to the media.
Here is the additional dilemma for the nation. One side admires Winner and Comey. The other side castigates Winner and Comey. It is likely that whatever the outcome of their individual cases, there will be no compromise between the sides.
The gloomy prospects of the years ahead must now include the small but not impossible possibility that, as in the 1850s, we are headed for a time when the civil war of ideas becomes a civil war of women and men acting above the law.