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The Comey Non-Crisis

Photo by angela n. | CC BY 2.0

CNN commentator and author Jeffrey Toobin, who served as an apologist for Clinton in her Servergate scandal on grounds that she was merely “at sea with technology,” called the Comey firing “a grotesque abuse of power by the president of the United States.” The Clinton Democrats are on the attack again, and could not be more wrong, again.

James Comey is either a political hack who does not know the fundamental difference between motive and intent in criminal law or he deliberately lied in claiming there was insufficient evidence of intent to prosecute Clinton for her intentional mishandling of government records on her private server. For this reason he should have been fired, if not impeached, long ago.

The overt reason that Comey was fired should be easy for progressives to accept as good cause. That reason, based on democratic principle, was explained in a professional manner by Deputy Attorney General Rod J. Rosenstein in his Memorandum to the Attorney General dated May 9. 2017. The Memorandum was adopted, with some additional boilerplate, by Attorney General Sessions, and in turn accepted, irrelevantly annotated with the equivalent of a tweet, and then acted upon by President Trump. The reason for firing provided in the Memorandum is Comey’s unprofessional “handling of the conclusion of the investigation of Secretary Clinton’s emails.” Not firing Comey would have constituted a precedent undermining democratic norms.

The Memorandum concludes, first, that Comey “was wrong to usurp the Attorney General’s authority on July 5, 2016” when he chose to announce his legal opinion that the case against Clinton should not be prosecuted.

Second, notwithstanding Loretta Lynch’s conflict of interest due to improperly meeting with Bill Clinton, “The FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department.”

Third, when such a conflict does require “recusal” of the Attorney General: “There is a well-established process for other officials to step in.” Instead Comey “announced his own conclusions … without the authorization of duly appointed Justice Department leaders.” In other words, since Lynch did and had to recuse herself from Servergate matters she was not empowered to authorize Comey’s unusual usurpation of authority from the senior lawyers in DoJ who are lawfully empowered to take over command in such circumstances.

These first three reasons are sufficient grounds for firing Comey, while also impeaching Loretta Lynch’s handling of the matter, due to her own complicity in breaking these rules. But the Memorandum is not about Lynch, except indirectly. Even more indirectly it is also about Obama, since he hired both of these Wall Street operatives after the Clinton email affair became known. Obama is subject to criticism for allowing this wrongdoing to occur on his watch. But this criticism is only left implicit in the Memorandum the purpose of which relates solely to Comey’s errors.

There is more.

Fourth, Comey violated a “longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.” Comey’s press conference was a “textbook example” of what prosecutors should not do. Any legitimate exceptions to this rule do not include the FBI acting on its own, “sua sponte,” as Comey did. Again this implicitly also rejects any role that Obama and Lynch had in arranging for Comey to circumvent DoJ professional prosecutors in such a public event, so that he could play this role of publicly exonerating Clinton on her series of known violations of the grounds of Comey’s amateur confusion of motive with intent that was never vetted by DoJ lawyers.

Fifth, and finally, the last straw involved Comey’s October 28, 2016 letter that has drawn steady fire from Clinton Democrats, although it is debatable whether it had the impact on the election they allege it did. This letter might have been intended to balance off, or even disguise, the enormous political favor Comey did when, at the end of the primary season but prior to the start of the Democratic Convention on July 25, Comey chose not to submit for indictment and prosecution the “derogatory” evidence he acknowledged in his July 5, 2016 press conference.

There is little question that Clinton’s delegates may have had a more difficult time rejecting Sanders’ claim to the nomination based on primary irregularities if Clinton was also under indictment. Sanders was more likely, if not virtually certain, to have defeated Trump had he been nominated instead of Clinton. Comey’s errors and specific timing therefore changed history.

The last straw dropped when Comey testified to Congress on May 3, 2017 less than a week before the Memorandum and firing. Comey offered as justification of the improper October 28 letter the false dichotomy between whether he would “speak” or “conceal” new Servergate evidence. This logical fallacy was an appallingly weak defense for yet again violating the tradition that prosecutors and their investigators “refrain from publicizing non-public information.” It is understandable that this illogical misrepresentation of his actual range of options in dealing with the possibly new evidence revealed incompetence that finally triggered the Memorandum and consequent firing of Comey sooner rather than later.

There is a strong argument that since his July 5, 2016 press conference helped rig the election against Sanders Comey should have been fired for the very reasons that the Deputy Attorney General explains in general terms. The Memorandum itself is an important historical document because it now clearly forecloses future FBI Directors from using the Comey precedent to play presidential politics with the government’s powerful investigatory powers. It adds a section of references from other high level DoJ officials critical of Comey’s unprecedented actions, which helps to establish the wide bipartisan support for those principles.

But the contents of the Memorandum have been largely ignored. Propagandists favor speculation about the impact of a change of FBI Directors on the Clinton Democrats’ preferred subject of the ongoing investigation of Russian “hacking” or collusion with the Trump campaign in the 2016 election. It is unlikely that the Russians’ impact on the election will be greater than Comey’s is known to have been. Comey was as responsible as Clinton herself for making Trump president instead of the popular Sanders.

Like the proverbial broken clock, Trump has been right on two occasions. He was right to terminate the TPP negotiations. He was right to accept the guidance of Deputy Attorney General Rod J. Rosenstein for firing FBI Director James Comey for the reasons accurately recounted, even if not fully explained, in his Memorandum.

Because Comey was fired for these specific and flagrant misdeeds concerning how he concluded the Servergate investigation the new FBI director should be tasked to revisit the Comey recommendation not to prosecute. Specifically, as a litmus test for the job, any candidate should be quizzed on knowledge of the distinction between motive and intent in prosecutions against a powerful subject of an investigation.

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Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.

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