Sunday, October 30, 2016

James Fallows on the latest "October surprise" -- ** UPDATED ** with an update by Fareed Zakaria

James Fallows. The Atlantic, online edition, Oct. 30, 2016. "Trump Time Capsule #150: James Comey and the Destruction of Norms."

Comes now James Fallows, national correspondent for The Atlantic who has written for the magazine since the late 1970s. He once served as a speechwriter for President Carter, and he has written frequently -- and eloquently -- over the years of the erosion of standards in American political life by celebrity culture and the demands of a celebrity-obsessed 27/ news cycle, among other topics ranging from small-engine aircraft (he's a licensed pilot) to industrialization in China. His book Breaking The News: How the Media Undermine American Democracy (1997) especially shaped my thinking.

This year Fallows has been writing a series of time capsules on the following premise: "People will look back on this era in our history to see what was known about Donald Trump while Americans were deciding whether to choose him as president. Here’s a running chronicle from James Fallows on the evidence available to voters as they make their choice, and of how Trump has broken the norms that applied to previous major-party candidates." Today's is about FBI Director James Comey's "October surprise":

The rules in politics haven’t changed that much in recent years. What has changed is adherence to norms, in an increasingly destructive way.

I made that case, using examples different from the ones I’m about to present here, nearly two years ago. The shift in norms is also a central part of Thomas Mann’s and Norman Ornstein’s prescient It’s Even Worse Than It Looks, and Mike Lofgren’s The Party Is Over, plus of course Jonathan Rauch’s “How America Went Insane,” our very widely read cover story (subscribe!) this summer. [Links, including to a subscription page, in the original.]

[Examples, mostly concerned with the U.S. Senate's refusal to schedule hearings on President Obama's U.S. Supreme Court nominee but also including Justice Ginsberg's offhand remark on Donald Trump, omitted.

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The official rules didn’t change in these circumstances. The norms—that is, the expectation of what you “should” do, what you “really have to do,” what is the “right thing” to do, even if the letter of the law doesn’t spell it out—have changed. For its survival, a democracy depends on norms. That’s why the shift matters.

And that is the context in which I think about James Comey’s plunge into electoral politics, with his announcement about whatever “new” Clinton-related email information the FBI may or may not have found.

No one knows what this will mean for the election. Millions of people have already voted; in the nine days until official election day there’s not enough time to fully vet and consider what Comey may have found. Will the announcement re-energize Hillary Clinton’s supporters, making them worry that the race may be tightening again? Depress them? Motivate team Trump? Bolster the “they’re all terrible” case for third-party candidates?

We don’t know. But anyone experienced in politics, as Comey obviously is, would have known for dead certain that his intrusion would change the process in a way that cannot be undone. This is apparently what other officials in the FBI and Justice Department were telling Comey before he took this step. Two former deputy attorney generals—Jamie Gorelick, who served under Bill Clinton, and Larry Thompson, who served under George W. Bush—made that point in a new Washington Post essay that lambastes Comey for his self-indulgent decision (emphasis added) ...

[Extended quotation omitted]

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Last week I mentioned the ongoing cultural/“norms-enforcing” challenges that had plagued the Philippines, which I’d written about back at the end of the Marcos era in a piece called “A Damaged Culture.” The rules by which the Philippine Republic is governed are fine. A big problem involved norms—the things that powerful people did, just because they could get away with it.

The rules of American governance are still more or less OK, despite the increasing mismatch between the 18th-century structural decisions built into the Constitution and the realities of 21st-century life. It’s time to worry about the norms.

Fareed Zakaria. "America's poisonous politicized path" CNN, Oct. 30, 2016

(CNN)There are so few details provided by FBI Director James Comey that it is impossible to know what to make of his decision to inform Congress about new emails relating to Hillary Clinton's server. The timing is unfortunate, since Justice Department guidelines expressly advise its officers to be careful not to do anything through action or announcement that could interfere with elections or the democratic process.

It also raises a larger issue. The United States has gone too far down the road of criminalizing public policy. When your opponents do something wrong, even profoundly wrong, in politics, it is often best to treat it for what it is -- bad judgment, bad policy, bad ethics -- and make the case to the electorate to hold those people accountable. It should not be standard practice to instantly begin searching for ways to treat that behavior as criminal.

This has been a bipartisan problem. When Democrats controlled the legislature under the Reagan administration, they turned the Iran-Contra affair into a legal matter, which resulted in the appointment of an independent counsel, years of inquiries, and bitter partisan divisions. Then came the Clinton years, when this zeal exploded. The investigations of Bill Clinton consumed public attention, cost tens of millions of dollars, and resulted in an impeachment that was totally unrelated to the alleged original offense, Whitewater, on which no charges were ever filed. I realize that in some of these cases, laws were broken or circumvented and people should be held accountable for that. But when you appoint special prosecutors with unlimited mandates and budgets, who inevitably define success as finding a crime, you are changing the basic codes of Anglo Saxon law.

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The last two presidencies have seen something of a respite from these witch hunts, though there were some Democrats who wanted to try George W. Bush and Donald Rumsfeld as war criminals. In any event, it seems we are ramping up again for a round of criminalization of partisan differences. House Republicans are promising years of hearings and inquiries should Hillary Clinton be elected president. This would be a terrible outcome for a country; it would mean gridlock, venom and a political system consumed with depositions and trials rather than serious public policy.

The FBI and Justice Department in particular should stand as independent institutions and not be swayed by demands made by partisans of either side. James Comey seems like a fair-minded person, but his decision to provide color commentary on his decision not to indict Clinton, to testify to Congress about it, to send Congress raw FBI data, and now fire off this vague letter are all a break with longstanding practice and established procedures. Not since J. Edgar Hoover has an FBI director positioned himself as a player in the political realm. It does not help Republicans or Democrats to have the FBI at the center of a bitterly fought election.

The power to use the state to put someone in jail is an awesome authority; it should not be used in any way that might appear to be partisan. This is why I have always been suspicious of elected attorneys generals, who have the ability to use the police powers of the state to further their political careers.

Again, I know that sometimes there are real high crimes and misdemeanors. But that has become an excuse to turn every political divide into a search for a crime. And it has had ruinous effects in American politics. It poisons the public arena and makes politics a life and death affair, where people don't just want to defeat their opponents but to jail them. It reminds one of third world banana republics, not an advanced democracy.

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