Monday, May 22, 2017

Villains, Careerists, and Patriots: Thoughts on Kobach, Rosenstein, Comey, and McMaster

by Michael Dorf
(cross-posted on Take Care)

As a college student in the early to mid-1980s, I knew Kris Kobach because we were on the debate team together. I'm a couple of years older than Kobach, but he started debating as a freshman, so I had two full seasons to get to know him. I recall him as smart and genial. He was conservative but in what at the time struck me as a middle American country-club Republican sort of way. I did not hear from Kobach again until the mid to late 1990s, when he was a junior faculty member at the University of Missouri-Kansas City. He contacted me to talk about an academic paper he was working on. It was very much a scholarly rather than polemical exercise. We had a pleasant substantive exchange, which confirmed my earlier impression of Kobach.

Thus, I was very surprised when, a few years later, Kobach emerged on the national political scene as the evil genius behind many of the state-level efforts to crack down on undocumented immigrants. At first I thought there must be some mistake. Maybe this was a different Kris Kobach? Or maybe his views were being reported inaccurately in the press? But eventually I bowed to reality. Either I had been profoundly mistaken about Kobach all along or at some point he had transformed himself. Accordingly, I have no illusions that in his role as the Vice Chair of the Advisory Commission on Election Integrity Kobach will be anything but a champion of disenfranchising minority voters via Trumped up claims of voting fraud.

I relate the foregoing personal anecdote because it may bear on how to think about people with good intentions and reputations for integrity who take at-best questionable actions. When do their actions demonstrate that (as in Kobach's case) whatever they might have been in the past, they are now villains? When do their curious actions reveal them to be careerists? And when does the sacrifice of personal reputation serve a greater good? I'll explore these questions with regard to Rod Rosenstein, James Comey, and H.R. McMaster.

As was widely reported, Rosenstein was confirmed as Deputy Attorney General with broad bipartisan support based on his reputation as an apolitical career prosecutor with a strong commitment to following and applying the law fairly. It took less than three weeks of employment within the Trump administration for that reputation to be called into question when President Trump, Attorney General Sessions, and various Trump mouthpieces invoked Rosenstein's memo decrying Comey's mishandling of the investigation into Hillary Clinton's emails as the cover story for Trump's firing of Comey. As cover stories go, this was preposterous and, sure enough, within a day Trump himself blew it up by proudly declaring to Lester Holt that he was going to fire Comey regardless of what Rosenstein recommended, based in part on the "Russia thing."

What are we to make of Rosenstein's participation in the ineffective ruse? Last week he told the full Senate that when he wrote his memo he already knew that Trump was going to fire Comey. So why did he write the memo? Rosenstein has offered a vigorous defense of the substance of the memo, but that hardly explains or excuses his writing it under the circumstances when he did. Consider an analogy: If you are the supervisor of an employee with a record of tardiness and you know that your boss wants to fire the employee because of racial animus, writing a memo to the boss detailing the employee's tardiness makes you complicit in the racially biased discharge, even if you later claim (as Rosenstein told the Senate about his memo regarding Comey) that your memo was "not a statement of reasons to justify a for-cause termination."

I don't know Rosenstein personally but we were contemporaries in law school and so a number of people whose judgment I respect do know him. At least one such person has great faith in Rosenstein's integrity, arguing that Rosenstein must have participated in the Comey-firing ruse for noble purposes. It's possible to imagine that. Maybe Rosenstein figured that there was nothing he could do to stop Trump from firing Comey, but that by writing the memo rather than resigning in protest, he could preserve his position and thus do some good--for example, by appointing Robert Mueller as special counsel. After all, the memo itself is not wrong in its assessment of Comey's errors of judgment, so Rosenstein could have told himself that the illicit use of the memo by Sessions and Trump was on them.

Indeed, there's even a heroic version of that story. In it, Rosenstein anticipated that his own reputation would be tarnished by his participation in the Comey-firing ruse and only partially rehabilitated by the subsequent appointment of the special counsel, but Rosenstein took the hit anyway for the good of the country.

Maybe, but maybe not. Ben Wittes reports that Comey said of Rosenstein (before Rosenstein rationalized Comey's firing): "Rod is a survivor." Wittes adds that "you don’t get to survive that long across administrations without making compromises." So maybe the most straightforward explanation is right: Rosenstein is a generally honorable fellow who either displayed incredible naiveté or made a serious error of judgment by caving to pressure from the White House, and only after the resulting firestorm threatened to engulf him did he bow to the external pressure to appoint a special counsel.

Another problem with the idea that Rosenstein was taking one for the team is that people with reputations for integrity often cultivate them. That's not to say that they lack integrity. But it is to say that Comey and Wittes might have it somewhat backwards. Making at least small compromises is what people of good will who are not trying to impress everyone with their integrity do all the time.

Any adult with substantial experience in any organization that operates roughly by consensus will be familiar with the phenomenon. Someone proposes doing something that you think is a bad idea; you voice your concerns; your colleagues or your boss hear you out but they say that they want to proceed anyway; you could make a big stink but you conclude that this is not a question of life-or-death or a fundamental principle, so you go along. The sort of person who always stands up for principle is a gadfly at best and often an asshole.

How does someone who is not widely perceived as a gadfly or an asshole develop a reputation for being a person of great principle and integrity? Essentially by curating his reputation. As numerous commentators have noted, that's more or less what Comey has done--leaning very hard on the tale of the hospital visit.

To be clear, I'm not arguing that Comey did not act honorably and with integrity back in 2004, when he blocked the effort of Alberto Gonzales and Andrew Card to reauthorize an illegal surveillance program. He acted honorably. What I am saying is that Comey seems like the sort of person who pays a great deal of attention to his own reputation. And that accounts for his worst sin: Because he didn't want to look like he had acted unfairly to influence the election by sitting on the Anthony Weiner material, he in fact unfairly influenced the election. The cultivation of the appearance of integrity can sometimes be inconsistent with actually acting with integrity.

Again, to be clear, I do not mean to say that Rosenstein or Comey is especially shady. From what I know, each has earned his reputation for being a generally fair and trustworthy professional. But human nature being what it is, I think one ought to be skeptical of claims that anyone is extraordinarily fair and trustworthy. Such claims tend to be the result of careful attention to the cultivation of an image. That image need not be at odds with the underlying reality, but one should not mistake it for the entirety of the reality.

To summarize the score so far: Kobach is a villain; Comey and Rosenstein want to be seen as heroic self-sacrificing patriots and to some extent they may well be, but their attention to cultivating their respective reputations for integrity means that each is at least partly a careerist. What about McMaster?

Widely admired as someone who would provide internal resistance to Trump based on his long career and especially his book Dereliction of Duty, McMaster risked his reputation when he went full Spicer with a nondenial denial of the report that Trump divulged information to the Russian ambassador and foreign minister that compromised the sources and methods of an Israeli counterterrorism operation. As Prof. Buchanan noted on this blog on Thursday, this was a somewhat careful lie but a lie nonetheless.

Has McMaster gone over to the dark side? Is he simply trying to keep his job? If so, is he doing so with the most noble intention--allowing his reputation to be besmirched so that he can continue to be an internal influence for sanity within the Trump administration?

Whatever the answer with respect to McMaster, one ought to be at least a little wary of the sort of compromise we can imagine that he and perhaps Rosenstein have made. I said above that never compromising is the sign of a gadfly or an asshole. That's true within generally virtuous or even generally non-evil organizations. But a different calculus applies in awful organizations.

If you find yourself working in an awful presidential administration, you can rationalize that you need to go along with and even participate in some terrible things so as to preserve your position in the awful administration, rather than resigning only to see yourself replaced by a spineless hack. That way, you tell yourself, you will be ready to provide internal resistance when the chips are down. The problem with this approach is that if you rely on it too often, you become the spineless hack.

15 comments:

David Ricardo said...

Comey and Rosenstein have acted in part in honorable ways, but the statements of McMaster have been the most upsetting because as Mr. Dorf pointed out he was supposed to be the sane and rational and independent person in the room. But his actions of note have revealed him, for reasons unknown, to be a fawning apologist.

Consider this report from Politico on the Trump rant about Comey being crazy and a nutcase.

"President Donald Trump brought up the firing of FBI Director James Comey during a meeting with Russian officials earlier this month because he was trying to explain that he felt "hamstrung" in working with them amid intense media coverage, White House national security adviser Lt. Gen. H. R. McMaster said.

In an interview with ABC News' "This Week" airing on Sunday morning, McMaster said he didn't know in advance that Trump was going to raise the issue. The New York Times reported Friday that Trump told Russian officials that Comey was "a real nutjob."

"I don't remember exactly what the president said, and the notes ... I do not think are a direct transcript," McMaster said when asked about the comment."

I don't remember exactly what the President said???? What a bold faced lie. Of course he remembers but he just doesn't want to be the confirming party since the rest of the White House is lying about the comments. And the excuse that the Russian probe 'hamstrung' the President in working with them? That's as pure as it gets in saying the motivation in the firing was to stop the investigation because if people really believed the investigation would go forward regardless of the firing then the President would still be 'hamstrung'.

Sadly McMaster revealed himself for what he really is, and the only saving grace is that he is not Flynn, a standard so low as to be meaningless.

Ben Alpers said...

I've been thinking a lot about Kris Kobach in recent years. Most obviously, because he's been a force for real political evil during his time as Secretary of State of Kansas. But also because, as you know, I knew him, when you knew him, as a member of that debate team (for those who don't follow 1980s college debate closely, Prof. Dorf and I were college classmates and debate partners).

In fact, the other reason that I've thought a lot about Kobach is that he has, for a long time, been a kind of counterexample for me to Ted Cruz, who I also knew through college debate. Ted was two or three years behind Kris in college. I got to know Ted when, as a graduate student at Princeton, I helped out on their debate team. (At the time I very much felt that I was paying back a favor that Prof. Buchanan had done me -- and Prof. Dorf -- when, as a graduate student at Harvard, he was actively involved in our debate team during our undergrad years...but that's a story for another day.)

As Ted Cruz's college roommate became famous for saying during last year's presidential primary race, Ted would be the last human being you'd want as president even if his politics weren't horrific (and yes, I still think that, even now having the second-to-last human being I'd want as president actually serving in that capacity). He's just an awful, sulfurous human being. He made that impression instantly on nearly everyone he met (with the singular exception of his longtime debate partner and friend David Panton, who was, oddly, an extremely nice guy).

Kris seemed very different: someone as politically noxious as Ted who was, at least on a superficial level, a perfectly nice guy. I, too, always took him in college as a "middle American country-club Republican." And I was also surprised at his emergence as a leading figure on the white nationalist right....though I think I first became aware of this during his failed campaign to unseat then Congressperson Dennis Moore (D-KS) in 2004. I remember asking my brother (a college classmate of Kris's and yet another debater) what had happened to him. My brother's theory was that he was a careerist who had just been sucked ever rightward by the general direction of Republican politics. For years, I took that to be the origin story of the Kris Kobach who is currently trying to deny the franchise to tens of millions of his fellow US citizens.

(This comment was too long for your commenting system, so I'm splitting it here)

Ben Alpers said...

(Continuing the above comment...)

But a problem with this story is that, unlike James Comey or Rod Rosenstein, Kobach was not merely a functionary. Despite being in the relatively mundane office of Secretary of State of Kansas, Kobach has become a leader is his chosen field of bigotry. Now some of this is that he is a relatively smart guy surrounded by idiots. In the land of the blind, the one-eyed man is king and the price of entry to become a party intellectual in today's GOP is low. But his career path has not been merely about "making it" (as, in a broad sense both Comey's and Rosenstein's have been), but actually pushing his party in a direction that, as recently as the early 2000s, was a position of the far-right fringe.

More recently, Kris came up in a conversation with a colleague of mine here at the University of Oklahoma. Like everyone else in this story (!), the colleague in question was a debater (and a very successful one to boot). Unlike the other characters in this story, he went to KU. He'd known Kris as a high school debater. And he just thought of Kris as an awful person, even back in high school.

So I guess the upshot of this long comment is that people fashion themselves in various ways. And the most successful forms of self-fashioning don't present themselves as self-fashioning at all. Perhaps Kris was just a successful enough self-fashioner that he was able to convince many of us who went to college with him that he was an affable, middle American country-club Republican, when he was in fact always the Kris Kobach who has been working to make America more of a Herrenvolk republic.

Joe said...

Perhaps I should bow to those who know him directly, but does seem hard to pick Trump over Cruz. Cruz is a horrible human being, but he seems half-way credible and competent at least. And, Trump is pretty horrible as a human too though I guess someone might on a basic personal level give him a slight edge.

Feels like trying to find the best Jets QB option.

Ben Alpers said...

I am pleased that I don't actually have to make the choice, but the main difference between Cruz and Trump in my opinion is that Cruz is much smarter and more competent than Trump is. And given their shared authoritarianism and (apparent) sociopathy, I'd rather have the incompetent model.

(There are of course other differences, too. I think Trump only cares about himself and perhaps his immediate family. His ideological attachments are shallow, though I don't take any particular comfort from that fact. Cruz is a complete ideologue. He is deeply committed to the sort of world view that Trump has more accidentally attached himself to.)

Joe said...

Thanks. I have seen this approach:

"I'd rather have the incompetent model."

Maybe it's the best of lousy options. Russian Roulette or not. But, not sure.

Steve Davis said...

As a classmate and debate team colleague of Mike and Ben I knew Kris too, a little, and I always liked him. He was obviously intelligent, well-spoken, and unfailingly genial. I didn't, and don't, know him well enough to offer any sort of insight into what sort of person he "really is." I'm inclined not to change my opinion of him as a person without interacting with him personally (I haven't seen him since college).

I think the best explanation for the seemingly puzzling course his career has taken is the mundane, political one -- he's a Republican, trying to make a name for himself in the party, and the party has gone crazy. It's a party that boots Eric Cantor out of office for being insufficiently hardcore and criticizes Paul Ryan for being a RINO. Its orthodoxy --
if you can call it that -- is policed by the likes of Ann Coulter and Sean Hannity. Kris is doing what you have to do to get ahead in the GOP of 2017.

Michael C. Dorf said...

Many thanks to Ben and Steve for sharing their recollections and insights. And a warning to my current students: The impressions you leave in college and professional school will follow you forever!

Asher Steinberg said...

I think it's pretty important, as between two sociopathic presidential candidates (bracketing whether that accurately describes Cruz or Trump), to have the competent one who understands the law, and that some recent events have demonstrated as much. But I would stipulate that that's at least not obviously correct.

On the subject of being an awful person, I think, to be fair, that smart, arrogant, competitive people can often be misunderstood as awful. It's possible that Kobach's high-school friend was just mistaken, or even possible that Professor Alpers was wrong about Cruz. If Cruz were a thoroughly awful person, his clerkships probably wouldn't have gone very well. But the reporting I've seen indicates that Judge Luttig liked Cruz a lot, personally, and that Cruz got along with his co-clerks and other judges/justices' clerks reasonably well. On the other hand, he seems to have been pretty unpopular in the Bush campaign; on the other, not so unpopular at the law firms where he worked. It's possible that Cruz is a complicated person who can let his arrogance and competitiveness get the better of him, but who also can at times be pretty okay.

Shag from Brookline said...

For some reason thoughts of Dr. Jekyll and Mr. Hyde come to mind as I read through the comments.

I appreciate Mike's warning to his current students, but had he warned his students in earlier years?

Shag from Brookline said...

Mike in his post in two places states in substantively::

" ... never compromising is the sign of a gadfly or an asshole."

Since Mike and certain commenters on his post have debating creds, perhaps this statement could be put in the form of a resolution and debated. To make such a debate fair, perhaps Ben might take the affirmative and Mike the negative.

In making this suggestion, it's not aimed at Mike's post, the subjects of the post or the commenters and additional subjects they may have introduced. Rather it is aimed at continuing dysfunction/polarization in Congress. Also, it is not aimed at Pres. Trump: though a gadfly and an asshole, his flip-flopping demonstrates compromising, making a deal - or not.

timb said...

I will re: Cruz that he is a member of a group of 100 competitive, arrogant people, and save Mike Lee, is hated by every other one of them. To me, that's a dispositive fact re: his character. At some point, some comedy writer will come across my comment that is the love child of Nixon and Frank Burns and instantly find success.

Mike Toreno said...

Again, to be clear, I do not mean to say that Rosenstein or Comey is especially shady."

Well, Comey is. Comey committed perjury in a Congressional hearing in order to smear Huma Abedin and make his abuse of his office appear less corrupt than it was. He deliberately mischaracterized the nature of the decision to abuse his office by saying that he had a choice to "conceal" or to "disclose." That wasn't the decision. Maintaining confidentiality isn't "concealing," and breaching confidentiality isn't "disclosing." The information DIDN'T BELONG to COMEY; what he did was akin to embezzling. I do NOT believe ANYTHING Comey says based on his unsupported word and I do NOT believe, without more information, that his contemporaneous notes were accurate representations of events. I believe said the things Comey reported him as saying because of the nature of Trump's denials and responses, NOT because Comey has credibility.

Look at Lindsay Graham as a similarly corrupt hack who cultivates a reputation for integrity and bipartisanship. He drones on about is disapproval of various crimes his party has committed, but reluctantly votes to support whatever it is they want to do.

Comey abused his position of public trust because he was supposedly misled by the transparently false Russian document. That's one way to look at it. Another way to look at it is that Comey committed treason. Which viewpoint requires less ripping of the fabric of reality?

Joe said...

http://www.lawyersgunsmoneyblog.com/2017/05/james-comes-integrity-appearance-integrity

Nice to see overlap in my blog reads.

Barry said...

My belief is that when people who've been around the block a few times do dishonest things, it's because they're dishonest. Just because somebody was charming doesn't make them good.

Also, in most of these situations, of course the guy was charming. You were colleagues and people he expected to encounter again. Find out how he treats the powerless and you'll know his true character.