James Comey finds himself out of a job unexpectedly – and perhaps not unreasonably. The timing of his exit and the confusion over the status of the investigation into alleged Russian interference in the 2016 election makes this unusual firing even more of a crisis in terms of the constitution and the confidence in both the Department of Justice and the Trump administration. However, these crises predate Donald Trump’s inauguration and call for unusual steps to ensure integrity in law enforcement.
The acute crisis started when newly confirmed Deputy Attorney General Rod Rosenstein recommended the termination of the FBI director’s employment over his handling of the Hillary Clinton e-mail investigation last summer. That when Comey broke precedent and decided to announce his findings publicly rather than simply submit them to the Department of Justice. “The director was wrong to usurp the Attorney General's authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution,” Rosenstein wrote to Attorney General Jeff Sessions and President Donald Trump. “It is not the function of the Director to make such an announcement. Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.”
All of this is undisputed, although Comey has tried to offer defenses for these choices, most notably last week in Senate testimony. Comey explained that the meeting between then-Attorney General Loretta Lynch and Bill Clinton had, in his estimation, created a conflict of interest that was “the capper” of ongoing concerns about influence on the Department of Justice. “The department cannot, by itself, credibly end this,” Comey said, and that its leadership “could not credibly complete the investigation and decline prosecution without grievous damage to the American people's confidence in the justice system.”
That may well have been true, Rosenstein writes, but Comey handled it badly nonetheless and made the situation even worse by abusing his power. “[T]he FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department,” Rosenstein concluded. “There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General.” Comey’s job was to raise that need with “duly appointed” officials within Justice, or presumably with Congress had that not worked. The insubordination and usurpation of power did significant damage, Rosenstein concluded, which now requires Comey’s ouster to correct.
Up to that point, Rosenstein would have found broad agreement for his arguments, especially among Democrats in Congress. Hillary Clinton had just renewed her accusations that Comey had interfered in the election and cost her the presidency, and Senate Minority Leader Chuck Schumer had declared in November that Comey had lost the confidence of his caucus to lead the FBI, a point Schumer made repeatedly at the time.
However, when Trump actually fired Comey for precisely the same issues Schumer raised, he and other Democrats called it a cover-up and demanded that the ongoing investigation gets assigned to a special counsel. "I don't think there's any alternative at this point," his deputy Dick Durbin told reporters. "I worry that they'll refuse the special prosecutor, and we'll never hear again from the FBI investigation."
They’re right to call for a special counsel, but they don’t go far enough. This requires two special counsels, not one – and had the Obama administration taken this kind of action up front, we might never have needed one of them.
When The New York Times broke the news about Hillary Clinton’s secret e-mail server in February 2015, it immediately raised issues about conflicts of interest with the current administration. Clinton was hiding those e-mails while serving as Barack Obama’s Secretary of State and was about to become his party’s frontrunner to replace him in the White House. Calls started early for a special counsel to conduct the investigation, but Obama and Lynch refused to accommodate them.
Even after the news of Lynch’s tarmac meeting with Bill Clinton in Phoenix broke, Lynch not only dismissed calls for a special counsel, she refused to fully recuse herself from any decision to prosecute. Lynch promised to accept whatever recommendation came from the FBI – a point which partially rebuts Rosenstein’s conclusions – but left herself in charge of the overall decision. A spokeswoman for the Department of Justice made that clear immediately afterward. “She’s the head of the department,” Melanie Newman noted, “and with that comes ultimate responsibility for any decision.”
At that point, a special prosecutor should have been appointed to relieve the political appointees of any input into the potential pursuit of criminal charges. Given Comey’s description of the findings of that investigation – especially with the grossly negligent handling of highly classified material by Clinton and her team – there is good reason for a special counsel to review the case again, independent of both the Obama and Trump administrations. Had a special counsel been appointed at the time, the career of a dedicated but perhaps misguided public servant might not have been ended this week.
The same issues pertain to the investigation into alleged Russian tampering with the 2016 election. Those allegations potentially involve people within the highest levels of government, and the expectation that politics can remain removed from these considerations has already been eclipsed. Firing the man in charge of those investigations while they remain in process, no matter how well-deserved the action may or may not be, raises the potential of political interference into law enforcement.
We should not compound the mistakes of 2015-16 in 2017 and pretend that this administration can police itself any more effectively than its predecessor. Better to act now to restore confidence in accountability and justice, rather than have the American public lose any more faith in the institutions of self-governance and the rule of law.