Politics & Policy

On the Comey Firing, a Race to the Bottom

(Reuters photo: Joshua Roberts)

As usual, President Trump and his most hysterical critics are engaged in a race to the bottom, this time over the firing of FBI director James Comey.

The president had more than adequate cause to fire Comey, who violated Department of Justice guidelines in the course of thrusting the nation’s premier law-enforcement agency deep into the politics of the 2016 election. We have supported the move, and much (although not all) of the case is laid out in the workmanlike memorandum crafted by Deputy Attorney General Rod J. Rosenstein.

Yet, the manner of the firing was ham-handed: The president’s bodyguard was dispatched to deliver the termination documents to what turned out to be an empty office, the White House having failed to check on the director’s whereabouts (he was on FBI business in California). And, as has become ever clearer over the last few days, the justifications for the action from the White House have been deceptive.

In a nutshell, Trump wanted to be rid of Comey but deflect responsibility for removing an FBI director less than four years into a ten-year term. So he directed Attorney General Jeff Sessions and Rosenstein to prepare a memo explaining the grounds of termination. Then, his team spun the firing as if it were the Justice Department’s idea, occurring now only because Rosenstein just started on the job. (Sessions has recused himself from aspects of the Russia inquiry, though the scope of the recusal is uncertain.) The White House tried to make it appear as if the president were merely concurring in the decision. Only when Rosenstein reportedly protested did Trump own up. In an interview with NBC News yesterday, Trump said that the decision was his and his alone. He also, disturbingly, said that he was thinking of Russia when he made the decision, contradicting everyone in the White House who said that had nothing to do with it.

All of this makes it more imperative, first, that Trump pick a widely respected, independent figure for FBI director, and second, that Congress commission a select committee to investigate this matter, as we have previously urged. It should examine all aspects of Russian interference in the 2016 election, including any involvement of Trump associates, as well as the Obama administration’s alleged use of government intelligence powers to monitor the Trump campaign and transition. The public deserves answers and the assurance that Congress is really pursuing them.

It is understandable that Democrats are screaming bloody murder about events of the last few days — certainly Republicans would be doing the same if a Democrat were in the White House and axed an FBI director the way Trump has. But the analogies to Watergate — ubiquitous in the media — are overwrought and obscure what the FBI’s investigation is about. This is worth explaining at some length.

During a March congressional hearing, Comey, with the approval of the Trump Justice Department, made the startling disclosure that “the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the United States’ 2016 presidential election.” (Emphasis added.)

What he described is not a criminal investigation similar to, and on a par with, the Watergate burglary and subsequent obstruction of justice. It is a foreign counterintelligence probe. The FBI is not just a criminal investigative agency; it is the nation’s domestic intelligence service, primarily responsible for protecting the homeland against foreign threats to American security and other interests — such as our election system.

The objective of a foreign counterintelligence investigation is not to gather evidence of a specific violation of law in order to build a prosecutable criminal case against a suspect. It is to determine the actions and intentions of foreign powers to the extent they bear on American interests. In this instance, surely: What exactly did Russia do, what is it trying to accomplish, and what steps can we take to thwart the Kremlin going forward?

This is not to say such intelligence investigations are wholly divorced from criminal probes. If intelligence agents happen upon evidence of penal-law violations, criminal charges may be brought. For example, some counterintelligence investigations focus on foreign terrorist organizations (which qualify as “foreign powers” under U.S. law). Terrorists inevitably commit sundry criminal offenses as they progress from the planning through the attack phases. If they are indicted, relevant evidence from the intelligence probe may be used in the criminal case.

That is rare, though. Not only are such investigations not designed to result in criminal charges; it is an abuse of power for the Justice Department and FBI to make pretextual use of the government’s intelligence-collection power (such as authorities prescribed by the Foreign Intelligence Surveillance Act). If they know their objective is a criminal prosecution, agents must conduct a criminal investigation, using traditional criminal-law evidence-collection techniques, not intelligence powers.

Moreover, the lion’s share of counterintelligence investigations are aimed at foreign governments, like Russia, not at terror networks. The criminal law is of little, if any, relevance — the writ of the U.S. courts and the jurisdiction of the FBI does not have much currency in Moscow.

Of course, in an investigation of any kind, the FBI delves into the backgrounds of the subjects, often discovering crimes unrelated (or at best, tangentially related) to the conduct that is under investigation. It has been reported, for example, that former national-security adviser Michael Flynn could now be under investigation for undisclosed payments for speaking fees in Russia prior to his involvement in the Trump campaign, as well as for the failure to timely register as a foreign agent for work his security firm did for Turkey. There have been reports that the FBI has been scrutinizing business dealings former Trump campaign manager Paul Manafort had with Kremlin-connected Ukrainian politicians between 2005 and 2014, and business conducted in Russia by Carter Page, whose connection to the Trump campaign — which listed him as an adviser — appears remote. Trump’s shady longtime crony Roger Stone has boasted of a relationship with WikiLeaks chief Julian Assange, and there are suspicions he may have had prior knowledge that WikiLeaks would publish e-mails hacked from Clinton campaign chairman John Podesta. But the suspicions are hazy, Stone vehemently denies collusion with Russia, and while foreknowledge would be tawdry, there is no evidence he had any involvement in the actual hacking — i.e., the crime.

Even if some ancillary charge were brought against one of these men, it would neither establish a conspiracy to collude with Russia to meddle in the election, nor convert the main investigation — the counterintelligence investigation — into a criminal case.

In short, it may be that this investigation really does have nothing to do with Donald Trump directly. That makes his petulant and self-destructive response to it all the more mystifying — except against the backdrop of his entire adult life, which has involved bullying and blustering his way to fame and fortune. Obviously, though, the current circumstances are different and the stakes much higher. The more he complains and lashes out, the more the opposition turns up the heat. The race to the bottom may have just begun.


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