The decision of President Donald Trump to fire FBI Director James Comey is generating a fevered, near-maniacal response that is out of proportion to the asserted wrong. There is certainly much grist for the mill, much of it related to the animosity that Trump is said to bear toward Comey, which proves once again that on all matters of state, this president is often his own worst enemy. (I have criticized him in no uncertain terms both before and after the election.) There is of course much to regret in the timing of the decision, and good reason to think it’s a political miscalculation in light of the ferocious response that it has generated.
But political blunders are one thing, and a constitutional crisis is another. Yet in Washington’s fevered environment, Trump’s many critics take evident delight in trying to outdo each other in their denunciations of the president. Thus Vox’s Matthew Yglesias takes the position that although the time for impeachment has not yet arrived, Trump’s decision to fire Comey carries with it (as a headline put it) “a whiff of obstruction of justice,” which is an impeachable offense if proved.
Writing in the New Yorker, Jeffrey Frank argues that Comey’s decision, while not (yet?) an impeachable offense, is “far more problematic and dangerous than the one facing the nation forty-four years ago.” At that time, President Richard Nixon ordered the firing of special prosecutor Archibald Cox, which prompted the resignation of both Elliot Richardson, the attorney general, and William Ruckelshaus, his deputy. Robert Bork was left to discharge that unhappy task, for which he paid a heavy political price 14 years later when he was denied a seat on the Supreme Court.
Not to be outdone, New Yorker columnist John Cassidy treated the firing as “a terrifying attack on the American system of government,” carried out by a man who “acted like a despot” who now has the opportunity to pick his own FBI head, who “will have the authority to close down the investigation.” At the same time, the Democrats, led by Senate Minority Leader Charles Schumer, have insisted in unison on the appointment of a special prosecutor to take over the investigation, even before a permanent FBI director is in place.
There are of course many reasons why one might oppose Trump’s decision to fire Comey, but none of them remotely deserve the hyperbolic responses that Comey’s termination has elicited. There are two sides to every story, and in this case the other side has, at least for the moment, the better of the argument.
Rosenstein’s memo is sound. If anything, it understates the case.
The first point to note is that Comey deserved to be fired, long ago, for the offenses that were set out in the memorandum of May 9, 2017 (subject line: “Restoring Public Confidence in the FBI”), that Rod Rosenstein prepared, which outlined Comey’s breaches of his duties as FBI head. Rosenstein, the newly appointed deputy attorney general, cogently described several significant errors of judgment, mainly having to do with Comey’s public statements about his investigation into Hillary Clinton’s use of a private email server while secretary of state.
But, if anything, he understated the case against Comey. First, Comey treated the initial investigation of Hillary Clinton back in March 2015 with kid gloves. There were the inexcusable decisions to grant immunities to key Clinton backers without first serving them with a subpoena that would have allowed the FBI to extract a quid pro quo for any immunity that thereafter might be granted. Second, the FBI allowed Clinton’s key aide Cheryl Mills, Clinton’s former chief of staff, to act as her legal counsel, even though she herself was a legitimate target of investigation who could have faced charges. And they did not conduct any of the ambush interviews that are commonly given in cases where criminal prosecution is warranted. The obvious inference is that Comey was kowtowing to his superiors in the Obama White House.
Next, of course, was his public statement on July 5, 2016, in which he gave a thoroughly unsatisfactory explanation as to why he chose not to prosecute Clinton for her use of an unauthorized server that, in a case involving lesser persons, would have resulted in serious criminal charges, wholly without regard as to whether unauthorized persons hacked into the site (which they surely did).
Once Attorney General Loretta Lynch, as Judge Laurence Silberman wrote, “sort of half-recused herself” from the case, any charging decision should have been made by or at the direction of Sally Yates, the deputy attorney general. As Rosenstein rightly said in his memo, no experienced law enforcement figure thought that Comey acted correctly in issuing a public statement that explained his point of view.
Finally, his late October surprise, rightly castigated by none other than the New Yorker’s Cassidy, that he was conducting another investigation of Clinton, one that went nowhere, was likewise a breach of his duties.
The common response to this line of attack is that criticisms of Comey’s conduct in the Clinton investigation had nothing to do with the president’s decision, which was made, we are confidently told (on the basis of no firm evidence), because Comey was hot on the trail of information about possible ties between Trump, his supporters, and the Russians during the campaign. But it is also the case that Comey has made no effort to distance himself from this earlier conduct, and indeed affirmed in his Senate testimony of May 3, 2017, that with respect to his October 28 letter on Clinton, even though the episode had made him “mildly nauseous,” he would do it all over again.
The past events thus are linked closely to the future events. If the mistakes Comey made could have justified his firing in either 2015 or 2016, the passage of time does not cure those improper decisions.
Comparisons to the Saturday Night Massacre are overblown
It requires contortions to convert an action that has independent justification into one that prompts talk of obstruction of justice and impeachment. In effect, one difficulty with that extravagant assertion is that it makes Comey de facto immovable from office so long as he continues to conduct this investigation. That cannot be the proper analysis because Comey has many other administrative responsibilities, including maintaining morale inside the office. No one should be able to guarantee his term in office by conducting a nonstop investigation of the president.
In this case, moreover, there has been to date no credible evidence of the improper linkage between team Trump and the Russians. This situation is, to say the least, a far cry from the situation with the Saturday Night Massacre in October 1973 when Cox had properly requested access to the tapes in the president’s possession — tapes that included evidence of Nixon’s deep involvement with the Watergate burglary. Now, that counts as obstruction of justice. In the present case, nothing come close to that unless and until it is established that Trump is in possession of tapes or documents that show a similar level of involvement.
Nor is there anything to the claim that Trump has acted as a despot. Despots remove people in order to take over all the organs of government themselves. Cassidy seems to think the president has it within his power to appoint a successor to Comey entirely on his own, when the position requires confirmation by the Senate.
I am confident that Trump would never nominate, and the Senate would never confirm, New Jersey Gov. Chris Christie, who was one possibility floated by CNN analyst Jeffrey Toobin in a public broadside against Trump. Nor is there any reason to think firing Comey will stop the investigation in its tracks. It can continue under the control of an interim director and the potential candidates for the office, including current acting director Andrew McCabe, a career official who is well regarded inside the agency. Despots don’t look for career professionals to do their dirty work.
If Congress thinks the FBI is not up to the job, it can conduct its own investigation
Nor is it clear to me that we need to appoint a special prosecutor to deal with this problem. Right now the details on this proposal are hazy at best, but unless there is some new legislation, any such prosecutor would operate inside the Department of Justice, not outside of it. The dangers of a runaway prosecution by an independent prosecutor were vividly pointed out by the late Justice Scalia in his stirring 1988 dissent in Morrison v. Olson. There is no need to revive that sorry chapter in American jurisprudence today.
And the demand for a special prosecutor raises as many questions as it answers. Who should make the appointment? Could it be anyone in the Trump Department of Justice? Attorney General Jeff Sessions seems out, given his decision to stay clear of the Russian investigation. Rosenstein seems compromised because he wrote the memo that led to the firing of Comey. Will it be necessary to come up with some novel procedure to fill the gap, knowing that there is no person on the face of the planet who has the unique blend of talents, independence, stature, and fortitude to taken on so thankless a task?
It could take months for this matter to be sorted out, and it is surely in no one’s interest to delay the investigation until the prosecutor is named and is able to fill all the positions needed to carry out the job. An appointment of this sort ought to await some clear sign that the reconstituted DOJ is utterly unequal to the task — at which point the pressure could again mount. In the meantime, anyone outside the DOJ, including committees in the House and Senate, and any independent newspaper, is entitled to mount their own investigation to see if they come up with something concrete on the supposed Trump-Russian connection.
At present, therefore, the near-hysterical charges against Trump on the underlying claims of impropriety are not supported. Given the mercurial state of affairs, the critics in Washington should hold their fire until they have something more concrete to go on. The great tragedy is that too many voices are so rigidly and irretrievably anti-Trump — so opposed to him on every aspect of domestic policy and foreign policy — that it clouds their judgment.
My view is somewhat different. I think that Trump à la carte is the only way to look at him: horrible on some issues, and sound on others. In this case, it is too soon to reach a definitive verdict, but here is my tentative conclusion about this current controversy: Where there is no smoke, there is no fire. Let the smoke appear, and we can and should reevaluate. But that time has not yet come.
Richard A. Epstein is the Laurence A. Tisch professor of law at NYU School of Law.
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