Sen. Ted Cruz (R-Texas), the noted former litigator and poster boy for constitutional conservatism, had some stern words for the attorney general of the United States. "Predecessors of yours in both parties, Democrat and Republican, when faced with serious charges of abuse of power for partisan gain," Cruz said, "have made the right decision and appointed special prosecutors."
The year was 2014. The allegation was that the Internal Revenue Service was disproportionately targeting Tea Party-affiliated groups for heightened tax-status scrutiny. And the special prosecutor--actually special counsel; the prosecutor job expired with the enabling statute back in 1999--was never appointed. It should have been then. It should be now.
But not according to Cruz, 2017 edition. Recently the senator released a brief statement agreeing with President Trump's sudden firing of FBI Director James B. Comey, no matter how suspiciously timed or absurdly justified. "Unfortunately," Cruz said, "Mr. Comey had lost the confidence of both Republicans and Democrats, and, frankly, the American people."
We expect that kind of ritual partisan insincerity from the likes of Senate Majority Leader Mitch McConnell (R-Ky.), a serial Obama-era supporter of special counsels who sure enough responded to Trump's ham-handed behavior by chortling hackishly about "Democratic colleagues complaining about the removal of an FBI director whom they themselves repeatedly and sharply criticized."
But the Tea-Party generation of Constitution-waving legislators, with their Federalist Papers quotations on separation of powers and Senate stem-winders on executive power abuse, was supposed to be different. Contemptuous of mindless party loyalty, uncommonly serious about the oversight function of Congress: Surely they would understand that an ongoing FBI investigation into the relationship between associates of a sitting president and a foreign adversary needs to be maximally shielded from Oval Office meddling?
Think again. Sen. Rand Paul (R-Ky.), one of 31 GOP senators in 2012 to demand a special counsel to investigate high-profile national security leaks, is in 2017 the leading opponent of what he calls "the hysteria of a special prosecutor" regarding all things Trump-Russia. "Many of these Democrats, including Chuck Schumer, said they lost confidence in Comey a long time ago," Paul said recently on Trump's favorite morning show, Fox & Friends, echoing the administration line. "They should be thanking President Trump."
The GOP holds only a four-seat advantage in the Senate, 52-48, and more Republican senators than that have expressed dismay at Comey's firing. Jeff Flake of Arizona said he could not find an "acceptable rationale." Richard Burr of North Carolina said he was "troubled by the timing and reasoning," a sentiment seconded by Nebraska's Ben Sasse. And Arizona's John McCain, among others, called for the creation of a "special congressional committee."
In the near term, the most important thing that conscientious senators can do is make sure that whoever the president appoints as the new FBI director is not some authoritarian-leaning political toady being rewarded for helping Trump during the campaign. Not another Jeff Sessions.
In February Sessions sailed through confirmation via unanimous Republican vote despite a long ugly track record of opposing criminal justice reforms championed by the likes of Paul and Sen. Mike Lee (R-Utah). Back then, Paul reasoned that, hey, Sessions agrees with the president on those issues, and therefore so would any replacement nominee.
That kind of party-line deference helped bring us to where we are today. Sessions was reportedly tasked with finding a reason to fire Comey. It's only fitting that, having gone about things backward to help his boss, Sessions' excuse represented a complete reversal of Trump team arguments so far: That Comey mishandled Hillary Clinton's email investigation. For the record, the Trump campaign--including then-Sen. Sessions--praised Comey's actions in real time last year.
Trump's crude self-dealing, outsize ego and willingness to wield state power against individuals were hardly secrets during the presidential campaign. Any politician who criticized executive-branch abuse under President Obama (and preferably President George W. Bush as well), should understand instinctively that this norm-breaking president requires more, not less, prophylactic restraint in the form of independent institutions and personnel.
Valuing such protections does not require any belief in Russia-conspiracy Twitter threads. To the contrary: Those who believe there's no fire under the Russian smoke should want an unimpeachable, nonpartisan source to discover and publicize that conclusion.
Paul, Cruz and Lee (who also supported Comey's sacking) are arguably the Senate's three most eloquent voices declaiming the legislative branch's constitutional abdication in making war, surveillance policy and even budgets. They are right about this, and they were right in demanding more investigative independence in the Obama administration. Here's hoping they extend the discourtesy to Trump.
Matt Welch is editor at large of Reason, a magazine published by the libertarian Reason Foundation.
Editorial on 05/21/2017