Initial Thoughts on the Political Demise of James Comey

Tuesday evening, May 9th, 2017.  Normally, I try to let the news cycle calm down a bit before  commenting, but it seems that not much is normal anymore.

Just a few hours ago, the President fired FBI Director James Comey.  He has the legal authority to do so, although the independence of the Bureau is so fiercely defended that this has happened only once before in history.  Previous Presidents often feared the FBI Director and didn’t dare fire him.   But Comey made himself vulnerable by grotesque self-inflicted wounds, making the President’s firing seem almost explainable at first glance.

Former FBI Director James Comey

There is, however, so much more going on than is visible at a first glance.  Here are my initial observations as a former federal prosecutor and a former colleague of Rod Rosenstein, the Deputy Attorney General at the center of this story:

Deputy AG Rod Rosenstein

• Rosenstein’s letter is carefully crafted, and obviously was not started in the last 24 hours. This is a matter that must have been under consideration for at least several days if not longer.
• The points raised in Rosenstein’s letter are meritorious. Comey violated longstanding Department of Justice policy on multiple occasions, documented well in the letter, and about which I’ve written often before.  In so doing, he did great damage to the country by unnecessarily causing chaos in a national election — at several different junctures.  His sins were both professional and political.  The public commenting on evidence in a closed investigation is an absolute no-no in law enforcement, particularly when the subject is a Presidential candidate during a campaign.  Similarly, the October 28th, 2016 letter, which many believe tipped the scales in the final weeks, was a shocking departure from well understood law enforcement protocols.  Sanctimonious to the end, Comey’s explanations never held up to people who know this area.
• Note, however, that the very reasons that Rosenstein cited against Comey were reasons that Candidate Trump loved Comey: he was beating up on Hilary Clinton and keeping a dead story alive.  Strange indeed that the President now says I must let Comey go because that very same conduct is unprofessional.  What does he know now about these matters that he did not know three month ago?  There’s obviously more to the story.
• What he knows now is, surprise, right from Comey’s own loose lips: that the FBI has an active counter-espionage investigation into the question of possible collusion between the Trump campaign and the Russian hacking operation.  It can fairly be presumed that Paul Manafort, Carter Paige, Roger Stone, and Michael Flynn are “targets” of the investigation, and that the President is a “subject” of the investigation.
• Decapitation of the investigation into the administration’s connections, if any, to Russian meddling in the election is a seriously disruptive act. It will be difficult to get a new FBI Director appointed in the current political climate, and legitimate questions will be asked about what happens to the investigation and to the evidence when the lead investigator is summarily fired?
• Attorney General Sessions was supposed to have recused himself with respect to the Russia investigation, but we today learned that he was involved in the decision to fire Comey. Does the highest law enforcement officer in the country not understand the concept of recusal?  In normal times, this would be grounds for his removal from office.
• The President could allay many concerns if he were able to appoint a well-respected, non-partisan FBI Director in Comey’s place. That, in theory, might assuage people’s concerns that this firing was not another Nixonian massacre, like the abrupt firing of Sally Yates.
• The next in line at the FBI, Andre Macabe, is already compromised by his inappropriate whisperings at the White House about this very investigation.  So leaving the post empty and having Macabe run things is an option that will not satisfy skeptics.
• Calls are already starting to come in for the appointment of a Special Prosecutor. Rosenstein promised in his confirmation hearing that he would give that issue fair consideration.  But will he be the next one fired if he does so?
• Remember that the FBI and the Department of Justice are not independent agencies. The FBI is part of DOJ, and answers to DOJ (a point Comey seemed routinely to forget).  The appointment of a special prosecutor, therefore, does not necessarily cure the problem of the FBI’s decapitation.  Prosecutors, whether independent or not, need committed investigators to do their work.
• Will the FBI be allowed to do a full and independent investigation of the facts?  We know that the two Congressional committees are incapable of doing so.  A Jeff Sessions-led DOJ also inspires no confidence.  The truth-seeking process at this point relies entirely on the ability of the FBI to do its job thoroughly and without interference.   We simply do not know at this point whether the Bureau will be allowed to do its job.
• Neither do we know yet whether anyone at the current Department of Justice is capable of maintaining the necessary sense of impartiality to bring this matter to a satisfactory close.

It is too early to pass final judgment on what we’ve just witnessed.  Certainly Comey gave the President a lot of cover by his mishandling of an important investigation (that the President benefited from greatly at the time).  Comey’s bizarre behavior left him with no allies, so he was vulnerable.  That does not mean, though, that the President’s actions are not suspicious.

The optics on this could not be worse for the President.  He personally signed the order firing the man who knows the most about the investigation into his administration — on a matter far more serious than the public has fully understood.  Nothing in the firing order or Rosenstein’s carefully crafted letter answers the question why the President waited three months to take this action.  One would be naive to think it unrelated to the Russia story which hounds this Presidency.

The Administration wants the story to go away, but it cannot go away.  The Russian attack was no less “dastardly” (to use FDR’s word) than if performed with jets and tanks.  A foreign power successfully  compromised our national election, helping defeat the candidate it most wanted to lose and helping elect the man it knew it had hooks into.

Because there is no smoke and no blood, most Americans fail to understand that what Putin pulled off was on the scale of Pearl Harbor or 9/11.  It was a dastardly, successful, attack on this country and on our sovereignty.  Putin is thoroughly enjoying the low-budget chaos he has wrought in the West.

Vladimir Putin

Try as some may to wish away the magnitude of the Russian attack, the facts will come out one way or another.  The President, if he has nothing to hide, should welcome a full and thorough investigation by professional investigators and lawyers with experience in law enforcement.  We did a bi-partisan fact-finding process after 9/11, didn’t we?

If, on the other hand, he continues to belittle the need for the investigation or if he fails to appoint someone of impeccable credentials and trustworthiness, the public will rightly believe that today’s firing was an effort to kill an investigation — just as serious as Nixon’s firing of Archibald Cox.

These are not normal times.  An Acting Attorney General, widely respected, was fired for refusing to enforce a travel ban of dubious constitutionality.  The top United States Attorney, Preet Bharara in Manhattan, was summarily dismissed with no replacement named.  An Attorney General recused himself but then took action in a matter closely related to the matter about which he was supposed to know nothing.  And today, the director of the FBI, the person who arguably knows the most about the evidence against the targets of the investigation, was fired with no notice by a subject of the investigation. The rule of law is under siege.

It’s been only three months.  We are officially in banana republic territory.  If you care about democracy, here or anywhere, you should be very concerned.

Postscript: May 10th.  This morning’s press reports indicate that the President’s motivation was in fact frustration over the fact that the Russia investigation is dominating the news, as well as Comey’s public disavowal of the claim that President Obama tapped Candidate Trump’s phones.   The purported reasons have already been debunked.  

Roger Stone, a close advisor to the President and a target of the investigation, apparently has been urging the President to make this move, and the Rosenstein/Sessions correspondence was, as it appears, the formal explanation (a/k/a the pretext).