Politics & Policy

The Bipartisan Case against James Comey

(Reuters photo: Joshua Roberts)
The stated rationale for Comey’s firing was that he damaged the FBI’s credibility.

Jim Comey has been a good friend to me over the years. I have disagreed strenuously with a number of decisions he made in connection with the Hillary Clinton investigation — with his rationales and with the fact that he was presuming to exercise authority that was not his to exercise. The independence of law enforcement is critical, but at times he seemed to redefine “independent” as beholden to only those institutional guidelines he subjectively judged worthy of following. Still, I personally know him to be a good man. I know that he loves the country and the FBI, and that every decision he made — regardless of whether it was right or wrong — was made in what he sincerely believed was the best interests of both.

Last week, he testified that he was made “mildly nauseous” by the thought that his decisions had an impact on the outcome of the election. I know what he means: It describes how I’ve felt in criticizing someone I’ve been fond of since we started out as young prosecutors three decades ago — except I’d have omitted the “mildly.” The only solace I take in it is that I know Jim did what he understood his job required — and he knows he is not the only one who goes about things that way.

The memorandum issued by Deputy Attorney General Rod Rosenstein to explain Comey’s dismissal Tuesday is well crafted and will make it very difficult for Democrats to attack President Trump’s decision. Rosenstein bases the decision not merely on Comey’s much discussed missteps in the Clinton e-mails investigation — viz., usurping the authority of the attorney general to close the case without prosecution; failing to avail himself of the normal procedures for raising concerns about Attorney General Lynch’s conflict of interest. He goes on specifically to rebuke Comey’s “gratuitous” release of “derogatory information about the subject of a declined criminal prosecution.” That “subject,” of course, would be Mrs. Clinton.

This (as I noted in a recent column) is exactly the line of attack Democrats have adopted since Clinton lost the election: Conveniently forget how ecstatic they were over Comey’s confident public assessment that the case was not worth charging, and remember only his scathing public description of the evidence — even though both were improper. Significantly, Rosenstein avoids any suggestion that Comey was wrong in concluding Clinton should not be indicted; nor does he in any way imply that Comey’s errors made it impossible to bring a wrongdoer to justice. That is, Rosenstein leaves unstated the partisan Republican critique of Comey. Instead, Clinton is portrayed as a victim. This will appeal to Democrats — especially since it will keep alive the fiction that Comey, rather than Clinton herself, is responsible for the Democrats’ stunning electoral defeat.

Rosenstein leaves unstated the partisan Republican critique of Comey.

Moreover, Rosenstein makes a point of quoting condemnations of Comey by Democrats prominent in law enforcement: former Obama attorney general Eric Holder and Clinton deputy attorney general Jamie Gorelick. Recall that Comey endorsed Holder for AG. This was an important seal of approval at a time when critics (like yours truly) were arguing that Holder’s key participation in the Marc Rich pardon scandal was disqualifying: Comey had not only been a respected deputy attorney general in a Republican administration; he had for a time inherited the Marc Rich investigation as a prosecutor in New York, when Rich was among the FBI’s most wanted fugitives. Yet, Holder has blasted Comey for breaking with “fundamental principles” of the Justice Department, and thus undermining “public trust in both the Justice Department and the FBI” (in a way, I suppose, that Holder’s own citation for contempt of Congress did not).

In any event, given that Rosenstein’s reasoning in calling for Comey’s termination echoes Holder’s judgment about the damage done — Rosenstein’s memo is titled, “Restoring Public Confidence in the Federal Bureau of Investigation” — it will be tough for Democrats to argue convincingly that Trump fired Comey for any other reason.

Or at least it should be tough. Trump being Trump, he could not resist saying, in his letter to Comey, “I greatly appreciate you [sic] informing me, on three separate occasions, that I am not under investigation.” On the off chance that the former director’s memory does not jibe with the president’s, Trump’s statement invites Comey to respond that this is not what happened. If Comey seizes on the invitation, the press angle would write itself: Comey, it would be said, was fired because he was trying to conduct the investigation of Trump-Russia ties about which he recently testified, not because of the bipartisan consensus that is described in Rosenstein’s memorandum.

But that is a story for another day.

Although it is impossible at this moment to think of Comey’s tenure as involving anything other than the Hillary Clinton investigation, there is a lot more to the job of FBI director than a single case, even a defining case. By even his detractors’ accounts, Comey has been an exemplary director in these remaining, extensive aspects of the job, particularly in protecting American national security and speaking out about the challenges faced by the nation’s police in a toxic anti-police environment. Even in disagreeing with him, Jim Comey’s admirers can hope that history will be kinder to him than this moment is.


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