Tuesday, 9 May 2017

Comey's Firing: A Moment of Truth for America

A Key Turning Point for Trumpism and Democracy

James Comey’s firing by Trump was lawful, and for some legal experts even overdue, but the now former FBI Director's role in leading the Trump-Russia investigation means that Trump’s action has brought his presidency to a turning point moment – a very dangerous moment for American democracy.  It really all depends on whom Trump nominates to succeed Comey.  If he tries to nominate a loyal stooge, then a constitutional crisis, or worse, the slide into authoritarianism, lies ahead.  If he nominates a credible, independent replacement (or a special prosecutor), or if the Republican controlled Senate insists on an independent replacement, then this will eventually blow over and Trump’s shambolic presidency will limp on. 

Whatever one may think of Comey’s actions during the campaign last year, the fact is he managed to anger both sides of the political spectrum, which indicates a degree of political independence and willingness to speak truth to power.  FBI director's have ten year terms in order to insulate against the whims of Presidents who may not like what—or whom—the FBI is investigating.  The President does have the legal authority to fire an FBI director; but the fact that Trump did so under circumstances of an active FBI investigation into the President’s own campaign, however, clearly vitiates the idea of judicial independence.

The situation has no precedent. The the only previous FBI director to be removed by a President was William Sessions, whose ethical misconduct was so severe that Clinton had him removed, but not before a six-month Justice Department investigation produced a 161-page report detailing his flagrant misused of government funds.  
In contrast, Comey’s dismissal seemed to have been cooked-up over the course of the past week. The New York Times’ Michael Schmidt reports that, according to administration officials, “Senior White House and Justice Department officials had been working on building a case against Mr. Comey since at least last week … Attorney General Jeff Sessions had been charged with coming up with reasons to fire him.”

 Trump’s order came with four statements of justification, which can be read here.  The first three statements by Spicer, Trump, and Sessions all refer back to the final letter from Deputy Attorney General Rod Rosenstein, who provides the “substantive” reasoning behind Comey’s dismissal.  Rosenstein’s memorandum bears the same date as the preceding three letters—which is to say today, May 9. Note that Rosenstein was only confirmed as Deputy Attorney General on April 25, making today his fourteenth day in office.

Entitled “Restoring Public Confidence in the FBI” the memo expresses concern that “the FBI’s reputation and credibility have suffered substantial damage” over the past year, citing Comey’s handling of the Clinton email investigation, in particular, Comey’s decision to make a public announcement in July 2016 declaring his conclusion that the investigation should be closed. Comey should have followed normal Justice Department procedure rather than announcing his conclusion independently. (Significantly, Rosenstein did not wait for the conclusion of a DOJ Inspector General investigation into the matter before coming to his own conclusion).  

Rosenstein also refers to Comey’s testimony last week about his dilemma of the October revelations of a re-opening of the investigation, and writes that “silence is not concealment” in the context of a criminal investigation; rather, it is normal government procedure.  And Rosenstein lists former Attorneys General and Deputy Attorneys General who publicly criticized Comey’s conduct, arguing that his poor assessment of Comey’s behavior reflects “the nearly unanimous opinions of former Department officials.” Consequently, for the FBI to regain the trust of the public, Comey had to go.  Note: the core reason for dismissing Comey, according to Rosenstein, was that the FBI Director's actions were unfair to Clinton last year.

Strikingly, Trump in his letter dismissing Comey, while reiterating that he is acting on the recommendation of both Sessions and Rosenstein, could not resist declaring: “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”  Trump’s clumsy, passive-aggressive attempt to deny that his own conduct is at issue in the FBI’s inquiry surely confirms the suspicions of critics that, whatever Rosenstein’s motivations, for Trump this was all about the Russia connection investigation.

After all, Comey testified just the other day that the FBI is “conducting an investigation to understand whether there was any coordination between the Russian efforts and anybody associated with the Trump campaign.”  Splitting hairs over whether this does or does not mean that Trump is “under investigation” cannot obscure the fact that Trump just fired someone who is leading an investigation that deals with whether his aides, campaign, and White House staff had improper dealings with an adversary foreign intelligence service.

Remember too, that Trump was positively jubilant about Comey’s October 2016 letter at the time it was issued. “The FBI would never have reopened this case, at this time, unless it were a most egregious criminal offense,” he declared at a campaign event in Iowa. "As you know, I've had plenty of words about the FBI lately, but I give them great credit for having the courage to right this horrible wrong. Justice will prevail.”  Trump celebrated Comey’s campaign-season intrusions against Clinton as “bigger than Watergate,” and his only complaint about Comey’s behaviour was that he had let Clinton off the hook -- not that he had been unfair to her.  In a statement since removed from his campaign website, Trump blamed a “rigged system” for the FBI’s decision not to prosecute.  Similarly, Attorney General Jeff Sessions on October 30, following the release of Comey’s letter about re-opening the Clinton email investigation, argued that Comey had an “absolute duty” to disclose new evidence in the Clinton email investigation prior to the election.

Why the sudden change of heart now?  It is simply incredible that Trump and his associates have suddenly discovered the virtues of the normal Justice Department procedure after having campaigned so aggressively against it last year.  Of course, getting rid of Comey removes the chief figure aggressively running the Russia investigation.  Comey, in February, reportedly refused the White House’s request to publicly knock down stories about Trump and Russia while congressmen in key positions of investigatory responsibility allegedly complied.  It removes the one individual of stature in the government whom most people think will pursue a credible investigation.  And it has been done very cunningly: stymie the Russia investigation by effectively siding with Hillary Clinton.

Already there are parallels being drawn to the so-called Saturday Night Massacre in 1973 when President Richard Nixon insisted that his Attorney General Elliot Richardson fire the special prosecutor Archibald Cox who was investigating Nixon’s role in the Watergate break-ins.  Richardson and his deputy, William Ruckelshaus, both declined to dismiss Cox before Solicitor General Robert Bork eventually carried out Nixon’s order. That event was the turning point for that investigation: it turned the Congress entirely against Nixon and he was forced to resign less than a year later.

But this is not 1973.  Then, the news media were united in their hostility to Nixon—a hostility that, given the evidence of political malfeasance, was well-earned.  There was no Fox News network, no Breitbart, no Twitter trolls to rally opinion behind the beleaguered president. Today, there are plenty of venues in which Comey will be painted as an incompetent bureaucrat whose termination was more than justified by his maneuverings around the Clinton email story – an argument many Democrats were making until a few hours ago.  Indeed, expect a twitter storm from Trump himself about the “hypocrisy” of Democrats complaining about the firing of Comey.
Nixon’s resistance to cooperating with the legal processes of the Watergate investigation turned the Democrats firmly against him, and some Republicans joined them.  It is far from certain in the hyper-partisan climate of today’s Washington that Trump’s fellow Republicans will be anywhere near so inclined to break ranks, despite the extraordinary nature of the Comey firing.  Nor do we know who is going to replace Comey.

But that is the key issue of this turning point. 

How Republicans react to the firing and to Trump’s replacement will probably determine the course of events going forward. Already, some Democrats have called for the appointment of a special prosecutor to continue the investigation.  But given that the Republicans control both houses of Congress, it is really how the GOP reacts that will determine whether Trump gets away with this.

Brian Buetler at the New Republic sets out some of the more likely scenarios:

On the off-chance Trump’s decision to fire Comey is not a calamitously ham-fisted attempt to obstruct the Russia-Trump investigation, a few of the following things need to happen very quickly.

First, and most critically, Deputy Attorney General Rod Rosenstein can appoint a special prosecutor to oversee the Russia-Trump investigation. As Senate Minority Leader Chuck Schumer told reporters Tuesday night, “If Deputy Attorney General Rosenstein does not appoint an independent prosecutor, every American will rightly suspect that the decision to fire Director Comey was part of a cover-up.”

Second, Trump can nominate a new FBI director who isn’t comically conflicted or cronyistic, as so many Trump nominees have been. Or, to strain credulity, he can accept a nominee whom the chair and ranking member of the Senate Judiciary Committee choose. One of Senate Minority Whip Dick Durbin’s chief concerns is that a partisan FBI director will extinguish the Russia-Trump investigation. The more drawn out and partisan the process of replacing Comey becomes, the clearer it will be that Trump is setting out to corrupt the FBI, and that the new director will be expected to fall in line where Comey did not.

Third, Republicans in Congress can relent and establish a bipartisan joint investigative committee or (in veto-proof numbers) pass legislation establishing an independent commission with subpoena power. Likewise, should Rosenstein fail to appoint a special prosecutor, they can join Democrats in passing veto-proof independent counsel legislation.

If these things don’t happen, and I am less than hopeful they will, it’s hard to see how we don’t tumble down one of two dark paths.

One path: Trump, who has boasted of enjoying the overwhelming support of U.S. law-enforcement agents, sets about attempting to co-opt or weaponize the FBI, and his government begins to collapse. FBI and DOJ employees resign in large numbers. Leaks begin pouring out of current and former government officials with such volume as to make the first months of the Trump presidency look watertight. (Comey, if nothing else, has a flair for the dramatic.) Then impeachment proceedings begin.

Another path: Republicans in Congress continue to enable Trump’s assault on democracy and the rule of law. Democrats in Congress use whatever obstructive tools they have to register protest or force some semblance of normalcy back into the system. But Trump wins his first and largest assault on competing institutions since his presidency began, and the nation’s slide into authoritarianism begins in earnest.

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