Good riddance Jim Comey and don’t let the door hit you on the ass. The self-righteous, publicity seeking FBI Director was fired Tuesday by President Trump. While the FBI Director is supposed to be above politics, it is necessary that he be politically adept enough to follow Justice Department policies and political protocol in the performance of his duties. Comey instead seemed to be constantly and publicly putting his foot in it.
When the Senate finally confirmed Deputy Attorney General Rod Rosenstein, two weeks ago, the Justice Department was in a position to act. While the personnel action on Comey was not technically covered by Attorney General Jeff Sessions self-imposed recusal on the investigation into Russian interference in the election, it no doubt seemed better to have the decision initiated by the Deputy Attorney General to whom authority for that investigation has devolved.
After reviewing Comey’s actions compared to Justice Department policies and guidelines, Rosenstein wrote an analysis of Comey’s actions terminating the investigation of Hillary Clinton’s private email server. I wrote about that action in more detail in Hillary skates again. On July 5 Comey held a press conference to announce that “no reasonable prosecutor” would indict Clinton for mishandling classified information. Republicans, including Donald Trump, were infuriated and Democrats, while relieved by the decision, were incensed that Comey went on to recite in excruciating detail all of the evidence (reported fully in Hillary skates again) that suggested to many that Mrs. Clinton should have been indicted.
Rosenstein in his recommendation concluded that Comey had usurped the function of the Attorney General by announcing that former Secretary Clinton would not be prosecuted. The role of the FBI is to investigate and report to the prosecutors who, as I noted in that Hillary skates again, are the ones who decide whether or not to prosecute.
Comey has recently defended his action before the Senate Judiciary Committee by saying he had to act because Attorney General Loretta Lynch had to recuse herself from the case because of her well known meeting with Bill Clinton on his private plane at an airport. However, there is a chain of command at the Justice Department, starting with the Deputy Attorney General, an Associate Attorney General and the Chief of the Criminal Division who would act in the event of the recusal of higher ups. The FBI Director is not in that chain of command. Comey’s arrogance was such that Rosenstein reported that Comey was still unwilling to concede his error.
Rosenstein also noted that it is not Justice Department policy to comment on cases in which a decision to prosecute and that Comey violated that guideline as well by reporting his detailed finding in the case. This is especially the case with actions taken close to an election. Again Comey would not concede error and might act in a similar fashion again.
Comey later reinserted himself into the campaign and angered Democrats by announcing in late October that the investigation was being reopened because large numbers of Secretary Clinton’s emails were found on the laptop of Congressman Anthony Weiner during an investigation of him on unrelated matters. Weiner was the husband of Clinton aide Huma Abedin who sent them to that computer so they could be printed. Just a few days before the election Comey again angered politicians, this time Republicans, by effectively saying “Ooops. Never mind.” The emails on Weiners’ computer were duplicates of ones that had already been investigated. All this was reported in more detail in James Comey, Pontius Pilate. These later actions, while demonstrating political insensitivity and violation of Justice Department policy on election meddling, were not included as grounds for dismissal in the Rosenstein report.
Based upon Comey’s actions on July 5 Rosenstein recommended that Comey be fired. Attorney General Sessions endorsed the recommendation and passed it along to the President. While Rosenstein’s recommendation suggested careful reflection, Trump acted immediately and wrote to Comey telling him he was dismissed with immediate effect. The letter included an odd expression of gratification that “you have told me three times that I was not the subject of an FBI investigation.” Apparently intended to inoculate President Trump from accusations that the firing was intended to terminate such an investigation, the phrase had the opposite effect.
As recently as Hillary Clinton’s statement a few days ago that but for Comey’s actions she would be President today, Democrats since last year’s election have been blaming Comey’s misconduct for their loss of the election. One might think they would be elated by Comey’s dismissal. Not in today’s constant “high alert” political climate.
Uniformly Democrats now complain that Comey’s firing was an attempt to shut down an FBI investigation into Russian interference in the election which would include any collusion by the Russians with the Trump campaign in that interference. The Democratic talking points include a comparison with the firing of Archibald Cox as Watergate Special Prosecutor and demands for an Independent Counsel. Trump’s claim that the so-called mainstream media are part of the opposition has been reinforced by their lockstep repetition of this conclusion.
Some facts. The FBI Russian investigation will continue. It is being conducted by career FBI agents in the Counterintelligence Division. Any attempt to stifle that investigation would produce a Niagara of leaks. The investigation is now under the ultimate supervision of Deputy Attorney General Rosenstein, a career prosecutor who has served as U.S. Attorney under Republican and Democratic Presidents and was just confirmed in the highly partisan U.S. Senate by a vote of 94-6. Congressional investigations of this and related subjects continue.
As to the comparison with Watergate, when Archibald Cox was ordered fired by President Nixon, the Attorney General refused and resigned and the Deputy Attorney General refused and was fired. In this case the firing was recommended by the Deputy Attorney General and the Attorney General.
There will be no Independent Counsel. Parties out of power love the idea special prosecutors with a roving franchise to investigate the administration – at least in the short term until their party returns to power. Watergate was the exception that proves the rule. Generally an unaccountable prosecutor with unlimited resources looking for a crime is a bad idea. Think of the Whitewater Special Prosecutor who wound up investigating the President’s sex life and recommending impeachment based on a semen-stained dress. Both parties wisely allowed the Independent Counsel statute to expire.