Republicans Should Want The Russia 2016 Story Out In The Open

by Dan McLaughlin

There’s any number of angles on President Trump’s firing of Jim Comey as FBI Director, many of which have been ably covered elsewhere on this site (see, for example, NR’s editorial, Andrew McCarthy on Comey’s failures, and David French on Trump’s credibility problems). For Republicans outside the Administration, especially on Capitol Hill, the overriding imperative right now should be to flush as much as possible about Russia and the 2016 election out into the open as soon as possible, while pushing the White House to line up a long-term, trustworthy replacement for Comey quickly.

Comey’s firing, by itself, is not the problem. There’s a lot of ridiculous hyperbole out there about this being a “coup” or a “constitutional crisis,” which is nonsense; presidents have the absolute legal authority to fire the head of the FBI for any reason, and Comey by this point had earned the firing. My view of Comey hasn’t really changed over the ups and downs of the past year: I continue to think he’s basically a straight-shooting lawman who has tried to do his best in a series of impossible situations (exacerbated by the kinda-sorta-half recusal of Attorney General Loretta Lynch from the Hillary email investigation and now the recusal of Attorney General Jeff Sessions from the Russia probe), and he appears mostly to be respected inside the FBI.

But Comey’s judgment has clearly been impaired by a combination of a lack of moral courage and undue solicitude for the institutional interests of the FBI. He accumulated enemies on both sides of the aisle with his handling of the Clinton hot potato; one hardly need look far for examples of Democrats calling for his firing until the instant he was actually fired (as Ben Domenech notes, Stephen Colbert’s audience erupted in thunderous applause at the news of Comey’s firing until they were told that this was no longer an acceptable opinion). Comey’s position became completely untenable after the story broke this week that he had misled Congress last week about the volume of classified emails forwarded by Huma Abedin to her husband, Anthony Weiner (Comey testified that hundreds or thousands had been forwarded, when in fact only a small number were, and the rest were just backed up on his laptop). Just yesterday, Comey had to fess up to this in writing to the Senate committee he had testified to. At that point, after everything else that had erupted around Comey, his days had to be numbered, and Trump seized the opportunity to fire him. In and of itself, this was the right decision, even though it seems unlikely that the latest shoe dropping on the email controversy was a major driver in why Trump wanted Comey out.

The concern, and it is a legitimate one, is that it’s a bad precedent to fire the FBI Director when he’s overseeing an investigation that cuts close enough to the president that the Attorney General had to recuse himself from it. While the president has the right to use his removal power to change FBI policies and priorities, it’s improper (not unlawful, but improper) for him to use it for the purpose of quashing investigations into himself or his allies. The best defense against a bad precedent is to pressure the White House to act quickly on a strong replacement who inspires public confidence that he or she will be undeterred by Comey’s fate. But Republicans would be well-advised to change their approach to the investigation so as to make it less reliant on behind-closed-doors decisions by the FBI, regardless of who its next director is.

Democrats and liberals cannot seem to stop mischaracterizing what is actually being investigated. The New York Times editorial perfectly captures the irresponsible hyperventilating: “Mr. Comey was fired because he was leading an active investigation that could bring down a president.” The Times links to its own report of Comey’s testimony in March confirming the existence of an FBI probe – but this does not remotely prove what the Times wants its readers to believe. Josh Marshall, characteristically, gets even more overheated, claiming that “the FBI is investigating the President and his top associates for colluding with a foreign power to subvert a US election” and that “[t]here is only one reasonable conclusion that can be drawn from the decision to fire Comey: that there is grave wrongdoing at the center of the Russia scandal and that it implicates the President.”

If you look at the available facts, instead of wild speculation, this is nonsense. As I detailed at length at the time, there is no such investigation: Comey’s own testimony in March demonstrated that he was pursuing a counterintelligence investigation, aimed at Russia – not a criminal investigation of Trump. That makes all the difference in how such an investigation would proceed (it is likely to be conducted in secret, without any endpoint, and without the goal of indicting anyone) as well as what inferences we should draw from its existence (counterintelligence probes don’t require anything resembling probable cause to believe that any American has committed a crime). Of course, such investigations sometimes spin off criminal investigations; it appears that the FBI is handing out subpoenas to business associates of deposed National Security Advisor Michael Flynn, after revelations of the extent to which he was on the payroll of Russian interests before the election, and Flynn as well as others like Carter Page or Paul Manafort may potentially face legal jeopardy for failure to comply with foreign-lobbyist-disclosure requirements and other disclosure and ethics rules. But while that would be embarrassing to Trump, it’s a very long way away from the sort of thing that “could bring down a president.”

In political terms, the problem for Republicans is that as long as the investigation is secret, Democrats can continue to make it look worse than it is. They have a license to spin conspiracy theories like Marshall’s, without the need for any facts or evidence; they can just say “the FBI is investigating this,” knowing full well that’s not what the FBI is doing but that the FBI won’t say so. That seems to be precisely what ate at Trump, who went out of his way to say in his letter firing Comey that “I greatly appreciate you informing me, on three separate occasions, that I am not under investigation,” and Politico reported that

He had grown enraged by the Russia investigation, two advisers said, frustrated by his inability to control the mushrooming narrative around Russia. He repeatedly asked aides why the Russia investigation wouldn’t disappear and demanded they speak out for him. He would sometimes scream at television clips about the probe, one adviser said.

Ben Shapiro notes further examples of why the logical conclusion to draw is that Trump is “ticked off that Comey appeared to be dragging his feet while refusing to state openly that he had no evidence of Trump-Russia collusion.” (Trump is no intelligence mastermind, and conspiring with Putin and Wikileaks behind the scenes to arrange the hacking of DNC emails isn’t Trump’s style; Trump’s style would be to have something like that drop into his lap and go out in public and cheer for it happening, which is what he actually did.)

Given the Democrats’ obsession with promoting the narrative that Trump is not just teetering on the edge of a Watergate-style implosion but doing so specifically in a way that invalidates the legitimacy of the 2016 election (despite their pre-Election Day obsession with insisting that the result would be unquestioned), Republicans’ political interest should be in an open and transparent process that clears the air of all of this, and does so well ahead of the 2018 midterms. And that political interest dovetails with the national interest in a full accounting of what went on during the election – an interest that trumps even the FBI’s potential interest in counterintelligence. But none of the existing investigations are really adequate to the task. The FBI, as noted, is pursuing an open-ended probe behind closed doors that is unlikely to exonerate anybody. The House is institutionally ill-equipped to investigate a president of its own party, as has been generally true of House majorities for at least the past four or five decades. The Senate Intelligence Committee investigation is the most promising, but it, too, conducts closed hearings, has limited resources, and faces significant partisan obstacles to reaching conclusions that will inspire public confidence.

Nor would a special prosecutor fix any of these problems. Prosecutors are principally concerned with building prosecutable criminal cases, so naturally a prosecutor would head off in the direction of targets like Flynn rather than try to present an accounting of the facts, plus they, too, work in secret with grand juries. It’s still not too late for the solution that best fits what the public needs: a 9/11 Commission-type blue-ribbon bipartisan panel composed mainly of respected people outside of day-to-day active partisan politics, empowered to take testimony, compile documents, and prepare a public report. The FBI can be left to focus on the actual criminal cases (and such counterintelligence goals as it sees fit), but publicly defer to the panel the broader examination of the president’s role. If, as the conspiracy theorists believe, they actually found some smoking gun, there are plenty of political remedies (up to and including impeachment) for that. Meanwhile, by taking the matter out of the hands of the FBI and Justice Department, the question of presidential meddling will be mooted.

Follow the facts, and make them public, and the politics will take care of itself.

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