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The Comey Firing

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I have some first impressions of the big news this afternoon, the firing of Jim Comey as FBI Director.
First, as many readers know, Comey is a former colleague and a casual friend of mine from our days together in the USAO for the Eastern District of Virginia.  I had a high opinion of his character and integrity then, and I have the same opinion now.  

Second, in the time of a toxic atmosphere in Washington, his job as FBI Director was even more difficult than has been the case in the past.  It's a high-wire act like few in national life.

Third, Comey's downfall started with his testimony before Congress prior to the election. Comey said that (1) Hillary Clinton should not be indicted, but then (2) condemned her as "extremely careless" with national security information, and laid out what the non-indictment would  look like, together with numerous and damning specifics.

Both decisions were serious errors in judgment.  It is not the role of investigators to make decisions whether to indict, and  still less to announce such decisions publicly. Investigators find the facts and send them to the prosecutor, who then has the sole power and duty to decide whether to seek charges.  Comey stepped over a crucial line of authority (and took the heat off Attorney General Lynch, whose job it was to make the prosecute-or-not call on her potential, indeed likely, future boss).

If, however, the chief investigator decides that no indictment is warranted, there are no grounds for his then laying out the factual basis for the charges he finds ought not be lodged.  One of the reasons important investigations are generally ex parte and in secret is to protect those against whom it is determined that a case will not be brought.  The law does not issue general proclamations about blameworthiness.

It turned out to be all downhill from there. Comey found himself in the dreadful position of seeming to give the advantage to one party or the other as the days counted down to the election.  

Fourth, an important fact that's easy for laymen to overlook is the effect of Comey's errors on morale inside the FBI.  Comey became a polarizing figure, and to an extent a political one, in an agency whose public reputation and effectiveness depend on its long tradition of unity and non-involvement in politics.  A divided FBI is not what its Director should be creating, but Comey did.

Fifth, there is a natural question about why President Trump waited until today to act, when the problems with Comey were known months ago.  The answer, again, may not be obvious to laymen. The reason, in my view, is that the President needed Rod Rosenstein to be confirmed as Deputy Attorney General, something that did not happen until just a few days ago.  

Attorney General Sessions is head of the Justice Department, and therefore quite properly had a role in the decision whether to recommend to the White House that Comey be relieved.  But it was better, in terms both of governance and public perception, for someone with new eyes, and prominent for his fair-mindedness, also to be involved in the decision.    

Sixth, the complaints about political convenience to President Trump would have been the same if he had fired Comey the afternoon of January 20.  The controversy about Russian hacking, which is necessarily caught up with Sec. Clinton's carelessness with national security information (although surely extending beyond it), long pre-existed inaugeration day. 

Last, all-in-all, I regretfully join the conclusion that a fresh start is the better path for the FBI.  Comey had become mired in a swamp from which there was no realistic escape. Part of this was his own misjudgment; part was the swamp itself, which the decades-long decline in trust in government has now put in our path.

I may have future thoughts on this, but I thought I should say something tonight.

I want to come out where I came in:  Jim Comey is a man of integrity I am proud to have worked with, and the country was fortunate to have him in its service. 

30 Comments

Sally Yates, Preet Bharara & James Comey?

All highly-intelligent persons of the utmost character and integrity.

All with the guts to do the right thing for the right reason in the face of immense pressure.

None of whom were "Yes Men/Women."

All of whom posed a real and present danger to the legitimacy of Trump's presidency.

The Rule of Law was dealt another blow today by a man who perceives that fundamental principal as nothing but an annoying impediment in his quest, his desire, for unchecked supreme power.

A sad (and dangerous) day for America.

Yates was properly fired for direct insubordination. An attorney for DOJ must defend actions by the executive branch for which there is any colorable argument. She refused.

Bharara was properly fired because US Attorneys are at-will political appointees who routinely get replaced by new presidents. Indeed, Bharara should have had the grace to resign before inauguration, as half his colleagues did.

Comey was properly fired for the reasons stated.

Decencyevolves: The President's public statements about Russia, the involvement of people within his campaign witg Russia, and about the alleged wiretapping of his office by President Obama have been so steadfastly dishonest that he has surrendered the benefit of any doubts on this subject. I'm not buying the notion that Comey was dismissed now based on his unfairness to the Clinton campaign. Senators Burr and Flake have denounced the timing of this decision as suspicious and troubling and they are right.

Yates took an oath to uphold the Constitution. (The same Constitution that was violated by Trump's EO1 according to virtually every court to address the issue.) Yates didn't take an oath to follow orders (from Trump) to support (in court) an EO that she, in good faith, believed was unconstitutional. To do so would have violated the only oath she took. She also, coincidentally, happens to be the person who told Trump that Flynn was subject to being blackmailed by Russia (that same Russia as in the Trump-Russia investigation headed up by the now (wrongly) terminated Comey.)

Bharara, again coincidentally, just happened to be heading up an investigation into major, far-reaching Russian criminal activities. (Again the same "Russia.")

And to add coincidence to coincidence, Comey --a proven independent-minded person who couldn't be bullied by the likes of Trump and has shown the guts to take on the highest public officials if it is the right thing to do -- was terminated in the midst of an investigation that threatens to terminate the bully's presidency.

Yes, Bill, in my mind this stinks.

1. I have not relied on anything the White House said; indeed, I haven't seen it, nor have I read Mr. Rosenstein's statement. I have relied on what I learned over the years I was at DOJ.

2. On the merits, do you think the Director's handling of the email investigation and his decision to speak publicly about it were proper? If not, what would be a better time to fire him? A month? A year? How long should a President wait before he fires an FBI head in whom he has lost confidence (as Senator Schumer said that HE lost confidence)?

1. Could you quote me the part of Ms. Yates' statement at the time where she said she found the EO "unconstitutional?" I think she said that it was unfair or some such thing, but not unconstitutional. If I'm right about that, she simply had a policy disagreement with her boss. That is not even arguably a justification for insubordination.

2. The ultimate decision is not hers to make. A reasonable (although, as you point out, losing) argument could be made in behalf of the EO.

Do you think that I, as an AUSA, could have instructed agents to disregard Miranda because of my good faith belief that absolutely nothing in the Constitution requires the police to give warnings the Court simply made up?

I would have been fired if I did, and rightly so.

3. It's news to me that a political appointee can make himself a permanent employee by conducting an investigation that might (or might not) embarrass his boss at some unknown future time. What statute or court decision makes political appointees immune to the political process?

The timing, the involvement of the "recused" attorney general in the dismissal decision and the President's attempt to absolve himself in the dismissal letter all disturb me. All of this was known immediately after the investigation and the President decided to keep Comey nonetheless. To answer your question though, the merits of the dismissal do not.

What happens next matters greatly. Does Rosenstein appoint a special prosecutor? Is Comey's replacement non-partisan and experienced or a partisan. Do we finally see a Senate Select Committee or does this continue to be a situation where the Administration and GOP members of Congress try to thwart a full inquiry? If these things happen, Paul and I may be worrying about nothing. If we see the same kind of monkey business that transpired when the White House put pressure on Comey, Burr and Nunes in February to publicly absolve the Administration regarding the Russia probe, we will all have reason to fear.

After Comey's firing, Sarah Huckabee Sanders was on Fox News saying that it's time to let the Russia investigation go. What do you think about that sort of statement by the Administration on the heels of the Comey firing?

Bill, with all due respect, you are being quite myopic on this issue. And, as a former well-respected federal prosecutor, I would have thought that you would have a greater ability to put all the circumstantail pieces together to see the full picture regarding Trump and certain members of his administration as it vrelates to Russia.

If Trump's firing of Comey in the middle of Comey's investigating Trump's connection (if any) to Russia's attempt to alter the outcome of the presidential election, was the sole and exclusive piece of circumstantial evidence regarding any untoward, illegal, un-American, connection between Trump and Russia, then perhaps your continued defense of Trump and his conduct might be reasonable. But, as Decencyevolves states, the totality of the circumstanial evidence against Trump (as it realtes to Russia) is such that his belated firing of Comey, and the alleged reasons for that firing, are laughable.

I just don't understand how you can't see that very clear picture and its effect on the Rule of Law.

I tend to be a merits person. If Action X is sound on the merits, then we should take Action X.

I think what should happen with the Russia investigation is that the next FBI head should let it go wherever the evidence leads.

If it leads to an indictment (for which I have zero evidence as I'm typing this), I'll have faith that the presumption of innocence for which you have spent years fighting will continue to be foremost in your mind, and that, in any event, the defendant's counsel will argue passionately to the jury that his client had a rotten childhood and suffered from "Russia syndrome" or "post-Catherine the Great stress disorder," or whatever else these guys can invent.

Sorry, I don't mean to be a wiseguy, but some things are too juicy to resist.

If Trump could snap his fingers and become America's First Dictator he would. And anybody who doesn't realize that doesn't know the Trump I have been following in the news for the last 40 years. (Caveat: I am not a psychologist or psychiatrist. But I did sleep at a Holiday Inn last night. :))

He perceived Comey, Yates and Bharara as threats to his twisted vision of his supremacy. Therefore, they had to be terminated, regardless of the potential political cost and regardless of the merits of their termination. Sooner or later, many other now trusted members of his administration will meet the same fate once they fall out of favor and are no longer useful to him.

Trump divides the world into friends and enemies. (I hesitate to bring up the overused comparison, but kind of like Nixon did with his infamous Enemies List.) And his perception of a person as one or the other can change at a given moment. But once he suspects you are his enemy (in his mind, because you don't back him 100% or pose a threat to his vision (or illusion) of himself) you are done, terminated.

Trump is not through terminating honorable, honest, people (like Comey, Yates and Bharara). I suspect that McMaster and Mattis are on his radar.

Bottom line: The task of ensuring that Trump doesn't, step-by-step, live out his dream of becoming America's First Dictator is in the hands of the GOP controlled Congress, the judiciary, the federal civil service protected administrative state, and ultimately the People, including, most importantly the 62 million or so people who voted for him.

With all due respect, paul, I think the "dictator" and "enemy" terminology is a little much and undermines an otherwise very important point/theme you are making here. I think the more measured terms would be loyal/disloyal.

Using this terminology my question to Bill is whether he thinks it appropriate or concerning that Trump seemingly believe he can terminate any and everyone in DOJ that he thinks is in some way disloyal. I surmise that what really got Trump's goat was that Comey contradicted his wiretap tweet and he has been eager to oust the guy since that moment of perceived disloyalty.

Comey repeatedly politicized the FBI and was fired, get over it. Yates was publicly insubordinate and was fired, get over it. This is how things work in the real world. In the military I remember, both would have been court marshaled. The next FBI Director should be a career cop who hates the media.

Doug stated: "Using this terminology my question to Bill is whether he thinks it appropriate or concerning that Trump seemingly believe he can terminate any and everyone in DOJ that he thinks is in some way disloyal."

To me, this is a weird statement. It's a political decision in the sense that the American people will or will not hold Trump responsible for firing Comey. It's not a legal, or even ethical, dilemma as POTUS has almost unlimited rights to fire an appointee for whatever reason he wants. Obama fired Mukasey because he knew that Mukasey had different goals and would not be loyal to him. So, what? Where was the wailing and gnashing of teeth? Every POTUS fires disloyalists and replaces them with loyalists, the only difference here being that it is usually done sooner after taking office.

The only thing we are arguing about is optics.

Tarls, I do not dispute or question that Trump legally can fire the head of the FBI or anyone else that serves under him. But historically, FBI Directors (unlike AGs) have not been fired by incoming administrations and have not been subject to replacement based on the kind of "policy loyalty" that applies to AGs and even US Attorneys.

This is why I asked Bill the question given his history in DOJ and his awareness of long-standing distinctions between "political" folks in DOJ and other folks. I thought the FBI head was a kind of "other" who would not be fired just for not towing the party line. But perhaps Trump is now just creating a new tradition of viewing/treating the FBI head like the AG as you suggest.

Along with what you've written about Attorney General Sessions, this post about Mr. Comey marks the second time you've made me relate to someone I've thought of as loathsome and incompetent. Your most successful arguments for state sanctioned executions and arbitrary prison sentences tend to come from the perspective of the victims, so I suppose I shouldn't be surprised.

Yet I almost feel as taking into account Mr. Comey's circumstances is besides the point. The average American Citizen should barely have known who Mr. Comey was. As FBI director, he should have been mentioned in a press conference precisely once - by Attorney General Lynch when she made the decision to indict or not indict.

I do not feel like Mr. Comey was an inept man. But to me, such a highly politicized saga points to a Department of Justice that is anything but, or a man more concerned with internal politics than proper procedure.

He had to go. Yet there is a tragedy to his departure being lauded by Conservatives and cried as proof of conspiracy by those on my side of the fence. Loved by Republicans before he was fired, and loved by Democrats after. In the end, he'll be forgotten - when neither right nor left has anything to gain from his indecisiveness.

Apparently, no one follows news reports here. Numerous outlets have reported that Trump, enraged about Comey's pursuit of the Russia investigation, decided on his removal a week ago and tasked Sessions with coming up with a rationale for it. If that is accurate, any reasonable person, regardless of political views, should find that extraordinarily objectionable and threatening to our democracy.

"[M]y question to Bill is whether he thinks it appropriate or concerning that Trump seemingly believes he can terminate any and everyone in DOJ that he thinks is in some way disloyal."

1. I have absolutely no evidence that Trump believes that "he can terminate any and everyone in DOJ that he thinks is in some way disloyal." Thus far, he's fired two out of, what, 5000 or so?

One was Sally Yates a political grandstander I was happy to see go, and who never should have had her job to begin with. The other was Jim Comey, a good man who made significant errors in judgment. Both were political appointees who, under the law, serve at the President's pleasure.

2. If in fact President Trump believes he can terminate any and everyone in DOJ that he thinks is in some way disloyal, that would be mistaken (not that you really believe this straw man). The huge majority of employees at the Department are non-political and have civil service protection.

3. Despite civil service protection, high-ranking career attorneys at DOJ should resign anyway if they believe that can't line up with their boss's priorities. That's what I did, http://www.crimeandconsequences.com/crimblog/2017/01/sally-yates-and-me.html.

Your point 3 helps advance the discussion, Bill, and I will try to sharpen my question in light of the latest reporting on Prez Trump's thinking and without the loyalty lingo. Here goes:

According to seemingly well-sourced reports, Trump was upset the Comey was focused on investigating Russia meddling/links more than intelligence media leaks. In other words, Trump wanted the FBI in general and Comey in particular to prioritize leaks over links, whereas Comey apparently was focused on links over leaks.

With that back story, my question is whether you think it appropriate for the Prez to fire the head of the FBI because he is not happy with his investigative priorities?

I have another: how can anyone think a special prosecutor isn't required when the President seeks to, and then does, fire the director of the law enforcement agency investigating his campaign because he dislikes the intensity of that investigation? Is a more potent example of the dire need for a special prosecutor and an independent investigation imaginable?

What you're doing here reminds me of what you and like-minded others did with the Garland nomination: You got indignant that he didn't even get a hearing.

Except that it was never about a hearing. That was a head fake. It was about getting momentum, one step at a time, to put him in Scalia's seat, in order to give the Left a five vote majority. And you wouldn't have stopped complaining at any point whatever before that majority was achieved.

Same deal here. It's not about an "independent investigation." It's about driving Trump from office by hook or by crook, and absolutely no investigation that fails to do so will satisfy you.

I wasn't born yesterday (to say the least).

P.S. I must have mislaid your note in the prior administration demanding that Ms. Lynch recuse herself from the Clinton email investigation. But perhaps my memory is slipping. Did you post that note before or after Ms. Lynch had her "private meeting" on the tarmac with Sec. Clinton's wealthy and well-placed husband?

1. Thank you for admitting, by silence but quite plainly, that your prior hand-wringing about Trump's putative belief that "he can terminate any and everyone in DOJ that he thinks is in some way disloyal," was, ummmmmmmm, kind of yelping for dramatic effect.

2. "... my question is whether you think it appropriate for the Prez to fire the head of the FBI because he is not happy with his investigative priorities?"

Let me give you the answer put forth tonight by an experienced attorney: "A President can fire an FBI Director at any time for any reason." The author was former AUSA (and other jobs) James B. Comey.

In the present case, as with any matter potentially involving a conflict of interest, the best practice is to defer to the view of someone else in the chain of command. That is what the President did when he deferred to the views of Comey's immediate superior at DOJ, DAG Rod Rosenstein, a man new to the case and with no personal stake in it.

I am not going to end the thread at this point, but if it gets to seem to me to be turning into a sour-grapes continuation of last November's campaign (which is what paul and Decencyevolves have been doing for a while now), or into a continuous re-posting of "Trump is Satan" signs, then I will reconsider.

As is a sad and too frequent tendency in the public discourse and now too often is your tendency too, Bill, this thread ultimately highlights it may be impossible to discuss these kinds of matters issues without extreme rhetoric ("dictator") or assumptions/evidence that everyone is only interested in defending folks on "their team" or attacking people on the "other team." To echo the Prez, sad!

I have not been "yelping for dramatic effect," but rather trying to take the measure of our Prez and understand whether and how his businessman tendencies are out of place in the government setting. The loyal/disloyal framing reflects my sense of how most business people can and arguably should approach underlings: if an employee of, say, Apple is working on research that is not what Tim Cook wants prioritized (and especially if Cook thinks the employee is eager to work against his instructions), it is surely appropriate for Cook to fire the employee. If Cook thought the employee was disloyal to him, it would be no real defense if the employee said he thought his research priorities would be good for Apple and the USA in the long run.

But I genuinely do not know, and genuinely want your perspective, on whether this kind of private sector reality for employer/employee can and should apply in the content of DOJ: if an employee of DOJ is working on research that is not what a President wants prioritized (and especially if the Prez thinks the DOJ employee is eager to work against his instructions), is fitting for the Prez to fire the DOJ employee?

I do not know the answer to this question, and I genuinely wanted your input based on this kind of framing. It is why the "dictator" rhetoric rankled me and got me to jump into the thread. Trump, in my view, is not acting like a dictator, he is just acting like a CEO. But I genuinely do not know --- and genuinely want to hear from smart DOJ insiders --- whether it is appropriate for a Prez to look at DOJ employees as just a business CEO looks at his underlings.

Doug --

I don't think you could have believed that Trump thinks "he can terminate any and everyone in DOJ that he thinks is in some way disloyal." Using language like that is not as bad as paul's "dictator" stuff, true. But it's still tossing a stinkbomb in the living room. As I say, you couldn't actually believe it, which is just as well, since there's not even a tiny amount of evidence to support it.

This doesn't need a lot of elaboration. When Trump has fired exactly two out of thousands of DOJ employees, and both of those high-ranking political appointees, there is just no basis (beyond partisanship?) to believe he thinks he can fire "everyone and anyone." Just none.

If you genuinely want to take the measure of Trump's views on justice issues, it's not that hard. Look at his choices for AG, DAG, AAG, and SG, the top four posts at Justice. I am enthusiastic about all four, in part because they are -- not extremists and indeed not all that politically inflamed -- but instead, like me, ex-Bushies.

There are some CEO aspects to being the head of ANY large bureaucracy, but they have significant differences when the bureaucracy is a federal agency and the vast majority of employees are civil servants.

Your question about Trump would be more relevant if and when he starts giving the axe to career people. That he fires political appointees at DOJ (a whole two of them) chosen by a predecessor with very different views is scarcely surprising. The opposite would be surprising.

And the two firings are fully justified any way you look at it. Yates was publicly insubordinate in order to grandstand to her fellow far-Left Democratic pals. She actually should have been fired earlier. Comey made some errors in judgment that, as they snowballed in the election season, cost him the confidence of both sides of the aisle and of his own subordinates inside the FBI.

Trump's letting them go was not the act of a bullying CEO. It was the act of someone who understood that they were unwilling (in one case) or unable (in the other) to provide effective leadership from here on in.

I am sorry, Bill, that you found my semantics stinky, but the substantive point remains one that I am struggling with, and your latest comments continue to help advance my thinking.

You say that my query "would be more relevant if and when he starts giving the axe to career people," and that helps me realize that tradition has led me to think of the FBI Director as more like a "career person" at DOJ. Though AGs and US Attorneys usually "get fired" with every change of administration, it has been my understanding that the FBI Director has long been treated differently and in a way that makes him more like a "career" DOJ person than the traditional political head of an agency or the "usual" political DOJ appointees.

I surmise you are ultimately saying to me "nope," the head of the FBI is a political appointee not in any way different in kind from folks like the AG, DAG, AAG, and SG. That makes sense, and if that is what you mean, I get it and appreciate hearing from a DOJ insider (and one who has praised Comey) that the FBI head can and should be viewed in the same professional and political light as folks like the AG, DAG, AAG, and SG.

Again, sorry for using terminology that you disliked as I worked through this and sought your input. I used the terms loyal/disloyal because that is how I think of the issue in employment settings (e.g., he/she is a "loyal employee"). But now I better realize that what is really at issue is whether the FBI Director should be viewed and treated as just another political appointee or as something different, and it is helpful to hear your take on this issue in the context of Comey's dismissal.

There is and should be more reluctance to replace the head of the FBI than other political appointees, because the FBI should have more independence. But he should not have anything like civil service protection, and he doesn't.

When was the last time -- before Hillary's interview last week -- that a major party candidate blamed his/her loss on the FBI?

Right. Never.

Comey's situation was literally unique. Both parties accused him of intruding into presidential politics. This was not entirely his fault, but it was partly his fault. He should have followed the conventional rulebook and stayed quiet.

Your suggestion (and it is a suggestion, not really a question) that Trump has shown that he'll fire anyone and everyone had no grounding when you made it, and still lacks any. He has shown that he'll fire very high political appointees in very unusual circumstances (either public insubordination or widespread loss of support inside and outside the agency).

I never said, suggested or implied that the FBI Director should be treated "just" like any other political appointee. He shouldn't. But there is a balance between independence and accountability, and Comey -- I say with sorrow -- was, because of poor judgment, on the wrong side of it. Replacing him was justified.

Trump's recent interview and other reporting, Bill, seems to reinforce my sense that Trump's concerns about Comey's loyalty and investigative priorities were the primary driver in his decision to fire Comey. That reality may not trouble you, especially because you plainly think there were plenty of sound reasons for Comey to be sent packing. But, at the very least, I would think you might be somewhat troubled by the obvious disconnect between the rationales offered and role played by the AG and the DAG and what Trump has now said was his thinking in deciding to fire Comey.

In the end, I ultimately share your view that there is a real potential benefit from having a fresh person head the FBI. But the process and spin surrounding the Comey firing certainly has not enhanced my respect for Trump or Sessions or Rosenstein, though what they do on various substantive fronts matters much more in the months and years ahead.

Sessions? Didn't he recuse himself long ago?

Tarls, in this medium I cannot tell if you are being facetious. I assume you are, but either way it is worth reminding all that the original White House statement said that the Comey firing was "based on the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions."

Nope, my mistake. I had forgotten that Sessions wrote a letter used by Trump to support firing Comey. Thanks for reminding me.

That said, I still believe that the most obvious reason for the dismissal is always more believable than the conspiracy. It's called incompetence.

There was never a good time to fire Comey without Dem hypocrisy rearing its ugly head. If he had done it on day one, they still would have said it was to cover up any investigation. The same is true on day 30, 90, 300 days after taking office.

He just may have chosen the absolute worst day to do it and the worst manner in which to do it.

It is unfair to call it political unless you have evidence that it was political. There is no gain from this if there is no evidence that he colluded with the Russians. None has ever been brought forth.

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