The two things you need to know about the Comey firing

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

There are two things you need to know about Donald Trump’s decision to fire FBI Director James Comey.

The first is that Trump has authoritarian tendencies and little regard for the Constitution or for constitutional governance in general. His stated reasons for firing Comey are almost certainly a pretext. Trump is now likely to name a replacement who will shut down the FBI’s investigation into his campaign’s ties to Russia.

The other thing you need to know is that Comey was an egregiously incompetent FBI Director.

The official chain of events that led to Comey’s firing are that, sometime on Tuesday, Deputy Attorney General Rod Rosenstein sent a memo to Attorney General Jeff Sessions laying out the case against the former FBI Director. Sessions then wrote Trump endorsing Rosenstein’s conclusions and recommending Comey’s removal. Trump then sent a letter to Comey officially firing him.

Though it is very likely that Trump’s given reason for firing Comey is a pretext, it is more uncertain whether Rosenstein acted in bad faith when he wrote the memo condemning Comey’s conduct.

Rosenstein’s memo is extraordinarily persuasive. Comey was wrong, Rosenstein writes, to hold the July 5, 2016 press conference where he both criticized then-Democratic presidential nominee Hillary Clinton and stated that he recommended against bringing criminal charges against her for having sub-optimal IT practices while she was secretary of state.

“It is not the function of the Director to make such an announcement,” Rosenstein explains. “At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors.” This policy exists for a simple reason — to protect the rights of people subject to investigation. “We do not,” Rosenstein states categorically, “hold press conferences to release derogatory information about the subject of a declined criminal investigation.”

Hillary Clinton is a human being with the same rights as everyone else. That means that she is innocent until proven guilty in a court of law. The FBI Director violated this most sacred principle when he dragged her reputation through the mud. Comey effectively punished Clinton without trial or conviction.

Comey then compounded his error with his infamous October 28, 2016 letter suggesting that new evidence had emerged that could potentially implicate Clinton in criminal activity — when in fact further investigation quickly revealed that no such evidence existed. Quoting former Deputy Attorneys General Jamie Gorelick and Larry Thompson, Rosenstein writes that Comey chose “personally to restrike the balance between transparency and fairness, departing from the department’s traditions.”

The Justice Department has a firm policy against disclosing potentially compromising information against a candidate in the period immediately before an election. Comey didn’t just violate this policy, he almost certainly changed the course of American history. As Nate Silver writes, the Comey letter “might have shifted the race by 3 or 4 percentage points toward Donald Trump, swinging Michigan, Pennsylvania, Wisconsin and Florida to him, perhaps along with North Carolina and Arizona.” Even conservative estimates suggest that it had just enough impact to swing the election towards Trump.

Yet, while Rosenstein lays out a very strong case for removing Comey, there are also early reports indicating that Rosenstein’s explanation may be a ruse.

It should be noted that Deputy Attorney General Rosenstein does not have a reputation as a political hack. Though he clerked for a very conservative judge and once was unsuccessfully nominated to a federal appeals court by President George W. Bush, Rosenstein is a career prosecutor who is widely viewed as a professional. Significantly, Rosenstein was also the only U.S. Attorney appointed by President George W. Bush that President Obama asked to remain in office.

Rosenstein is also new to his job — he was only sworn in as deputy attorney general less than three weeks ago. So one possible explanation for the timing of his memo is that he just now was in a position to write it.

In any event, the question of whether Rosenstein is an honest broker or a co-conspirator who willingly worked with Sessions and Trump to provide a pretext to remove Comey is very important because, with Comey gone, Rosenstein may be the one person in America who can ensure that there is a meaningful investigation into Trump and the Trump campaign’s Russia ties.

Last March, after news broke that Sessions falsely testified that he “did not have communications with the Russians” during his confirmation hearing, Sessions recused himself from the Russia probe. That makes Rosenstein the senior-most Justice Department official with authority over this matter, and the person who is empowered to appoint a special prosecutor to continue the probe.

Not long after the news of Comey’s firing became public, several lawmakers called upon Rosenstein to make such an appointment. If he does appoint someone — and if the person he appoints is a lawyer who can be trusted to act with integrity and independence — then that will be the best evidence that Rosenstein is, at worst, an unwitting pawn in Trump and Sessions’ scheme.

If he does not appoint anyone, by contrast, then Rosenstein will likely be remembered as the man who gave Trump the pretext he needed to put a crony in charge of the FBI.

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Reposted from Think Progress.

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

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