President-elect Donald Trump and his attorney-general designate Jeff Sessions come to office seeking to restore public confidence in the fairness and impartiality of federal law enforcement. After eight years of Attorneys General Eric Holder and Loretta Lynch, Americans have lost confidence in the Department of Justice. Recognizing this, Trump declared on November 21 that he had ordered his transition team to prepare executive orders to sign “on Day One to restore our laws and bring back our jobs.”
The most urgent matter that Attorney General Sessions will face is that of deciding the fate of FBI director James Comey. Comey was appointed in 2013 for a statutory term of ten years. In principle, however, he can be removed by the president at any time. President Bill Clinton removed FBI director William Sessions about halfway through his term on charges that Sessions had misused official resources. Although President Clinton discharged Sessions for cause, the statute creating the FBI director does not limit the grounds for termination, and we believe that the president’s constitutional authority of removal would allow him to fire Comey for any reason. Rather than firing the FBI director, however, it is more likely that the president would first request his resignation. We think that Director Comey should leave office for the good of the FBI and the nation.
In these circumstances, we think that Comey is too compromised to remain as FBI director. He may well have acted honestly, impartially, and conscientiously at every phase of the investigation. We do not question his integrity; his true motivations, whatever they may have been, will undoubtedly come to light in time. And he may have found himself in the position of chief prosecutor rather than chief investigator through no fault of his own, but because Bill Clinton’s meeting on the tarmac with Attorney General Loretta Lynch meant that she had to be disqualified from making the final judgment on whether or not to prosecute Hillary Clinton.
Nonetheless, Comey’s three interventions in the election were, perhaps, key factors in the outcome. His initial choice to prematurely close the investigation — as well as reports that his aides have attempted to shut down inquiries into the Clinton Foundation — squarely thrust the FBI into partisan politics. His decisions have cost him the confidence of the half of the voters who supported Clinton. Many Trump voters have also come to mistrust him.
Comey is too compromised to remain as FBI director.
That leaves the question of whether the investigation that Comey closed should be re-opened. And that in turn depends on whether President Obama or President-elect Trump decides to offer Clinton a pardon. There are sound reasons, deeply rooted in American political history, for an incoming administration not to pursue criminal charges against its defeated political opponents from the outgoing administration. Such a policy tends to moderate and stabilize American political life. On November 22, Trump appeared to recognize this in an interview with the New York Times in which he walked back from the idea of appointing a special prosecutor into the woman he labeled “Crooked Hillary” during the campaign. “It’s just not something I feel very strongly about,” he said.
On the other hand, Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.
Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.
But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.
We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried. President-elect Trump has signaled that he intends to close the investigation into Hillary Clinton’s use of a private server. And it may be that he intends to close other pending criminal investigations too, including one into the Clinton Foundation. If that is his meaning, the question of pardoning Clinton would seem to be moot. But Trump’s exact intentions are not wholly clear. Does he mean to close all investigations or only some? Would the activities of Clinton’s associates and staffers also be covered? Would Trump close the investigations immediately after his inauguration or wait for his attorney general to review the evidence and provide his advice?
Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching. Trump and AG Sessions will need to flesh out Trump’s recent remarks and resolve the ambiguities they leave open.
It is absolutely critical that those investigations and (perhaps) eventual prosecutions should be handled with the utmost concern for the integrity of the process. The least hint of political interference should be avoided. To that end, we recommend that Attorney General Sessions appoint a highly respected figure as a special counsel within the Justice Department to oversee the FBI and Justice Department prosecutors working on the cases. Figures such as former federal judge and attorney general Michael Mukasey or former judge and Homeland Security secretary Michael Chertoff would admirably fill the bill.
Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work.
Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.
President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open.
Obama held the ultimate authority over Lynch and Comey, and his knowledge of the private server system might have made him, too, a legitimate target in the investigation into Clinton. His deceitful conduct contaminated the investigation and raised even deeper doubts about its integrity. And his declaration of Clinton’s innocence before the facts had been discovered was worthy of Lewis Carroll’s Queen of Hearts: Sentence first — verdict afterwards!
This election was about the place of law in American public life.
These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents, from Dinesh D’Souza to George Zimmerman to the Little Sisters of the Poor. And it declined to pursue cases in which the Obama administration’s friends, or its potential donors, were at risk. (We have argued this once before.)
This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.
As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.
— Robert Delahunty is the LeJeune Professor of Law at the University of St. Thomas School of Law in Minneapolis, and he served in the Justice Department in four administrations. John Yoo is the Heller Professor of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute.