The Firing of James Comey: An Insider’s View

 

These days, my mind is in classical antiquity — focused on the last days of the Archidamian War. And when I am not thinking about Athens’ success at Pylos and Sparta’s at Amphipolis, I am teaching Greek History or a seminar on Plato’s Laws or (horribile dictu!) I am grading papers and exams.

So I did not hear about the firing of James Comey until I read an email this morning — sent by a former student who, having worked for years at the Department of Justice, is now retired. Here is what he told me:

Based on a career spent working with the FBI as a Justice Dep’t lawyer, and on the reasons that Deputy Attorney General Rod Rosenstein gave in this memo, I believe firing James Comey as FBI Director was the right thing to do. A lot of folks would’ve cheered if DAG Sally Yates and President Barack Obama had done this last July or October – as perhaps they should’ve.

If you use history in your analysis, try setting aside Richard Nixon’s Saturday Night Massacre. Go back a bit further, to an equally controversial firing: President Harry S. Truman’s removal of General of the Army Douglas MacArthur. Both Mr. Comey and Gen. MacArthur sought to usurp powers that our laws give somebody else. Both refused to back away from their improper assertions. Both had to go.

Comey’s firing is just the latest shift in the balance between DOJ and the FBI. Just as our gov’t rests on civilian control of the military, our law enforcement agencies are subject to the prosecution decisions of local, state, and federal gov’t lawyers. All are in turn subject to the courts. And it is long-standing, written DOJ policy that the FBI does not decide who is (or is not) to be prosecuted. Nor is the Bureau to speak to the press about DOJ’s exercise of its prosecutorial discretion, unless authorized by DOJ. Comey repeatedly broke those rules, and has repeatedly refused to admit his mistakes.

The questions of DOJ’s timing and good faith have, I believe, one basic answer: Rod Rosenstein, the new Deputy Attorney General. Over the years, I’d heard from quite a few DOJ lawyers whom I know and trust who believe that there is not a more honest, scrupulous, and dedicated lawyer in the Dep’t. So when the Senate confirmed Mr. Rosenstein as DAG, the DOJ-FBI relationship, as exemplified by Mr. Comey’s recent conduct, had to be on top of his in-box. My guess is that he just did his job and dealt with the problem.

I still respect, and in many ways like, Mr. Comey. He did many good things. In the last year, though, he went astray. Worse, he opened himself up to being removed by Donald Trump, about whom I have the gravest doubts. But those doubts don’t poison my view of Mr. Rosenstein. Not yet, anyway – further developments could show that I’m completely wrong. But I don’t think so. I firmly believe that if an investigation shows that anyone – pro-Clinton, pro-Trump, pro-Russian, you name it – should be charged, convicted, and imprisoned, this guy will do it. If you think you can break rules and get away with it, take another look at his memo. Or at his conviction record.

If my friend and former student is right (and he knows the protocols), the story here is fairly simple. Rosenstein was put in charge. Comey’s conduct was egregious. And after he had conducted a thorough investigation, on his recommendation, the President dumped Comey.

I voted for Donald Trump in November while holding my nose. I am not a partisan who hangs on his every word. But the question to be posed is whether we want a rogue FBI director. The office is now and has always been a problem. The individual holding it is subject to very great temptations. They led J. Edgar Hoover astray. They also led James Comey astray. I am confident that, if Hillary Clinton had been elected President, she would have dumped him, too — and the same argument would have been made. Whatever Trump’s motives may be and whatever Mrs. Clinton’s would have been matters less than the question whether it is proper for someone who is director of the FBI to act as James Comey did.

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  1. Jules PA Inactive
    Jules PA
    @JulesPA

    You’re back! Everyone was asking about you today.

    off to read your post.

    • #1
  2. Paul A. Rahe Contributor
    Paul A. Rahe
    @PaulARahe

    If any of you happen to be in DC on Friday, the 19th of May, I will be giving a talk on Sparta’s grand strategy at the Heritage Foundation: http://www.heritage.org/event/the-spartan-regime-its-character-origin-and-grand-strategy

    • #2
  3. Jules PA Inactive
    Jules PA
    @JulesPA

    Thank you for the clarity of this post.

    • #3
  4. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Thank you for the insight. It is as I suspected. Let us hope Trump does as well in replacing Comey as he did in replacing Yates.

    • #4
  5. Front Seat Cat Member
    Front Seat Cat
    @FrontSeatCat

    This is a good analysis. It might be the beginnings of the swamp drain. Mentioning that Hillary might have done the same is probably true, but I stand by the thought that had she been honest, not scrubbing emails, keeping unsecured servers, employing Huma who transferred thousands of documents to her pervert husband to print, and the long list of other discrepancies, serious enough to wonder what secrets of our country have been compromised, then Comey may not be in such a mess. The whole Russian story has yet to bear fruit. Scandals follow the Clintons day and night.

    Many have been asking about you, and you pop up, Mr. Rahe. Hope you are feeling well and thanks for the great post!

    • #5
  6. RightAngles Member
    RightAngles
    @RightAngles

    Great post.

    • #6
  7. JcTPatriot Inactive
    JcTPatriot
    @JcTPatriot

    Great Post, sir.

    I find it hard to believe that anyone could read the Deputy Attorney General’s memo and not come to the conclusion that firing Comey is the correct and only direction to go.

    I agree with some others that waiting until even the Democrats were saying publicly that there was never going to be evidence of “Russian Interference” was the proper timing of the firing, so that they couldn’t hang that charge on Trump.

    Sir, your post should be printed on the front page of every newspaper in America. Thank you.

    • #7
  8. Doug Kimball Thatcher
    Doug Kimball
    @DougKimball

    Professor!  Good to see you back on these pages, and healthy I hope.  Bookmarking this and will return with comments when I can give it proper consideration.

     

    I’m back!

    The first thing that struck me – a former student now retired?  Whoa there professor, that’s some heady stuff!

    But I digress.  Your student reflects what has been intimated about the FBI, that Comey had lost the support of his agents with his antics.  He just couldn’t seem to control himself.  He lost sight of his agency’s directive, forgot his role, abandoned his constituency.

    There are two ways to lose this kind of job.  First and foremost there is trust.  In the case of the FBI director, that trust is in absolute, stoic objectivity.  Comey tried, however he could not help but push beyond the facts, but that was never his role.  He wanted to circumvent the process and play Soloman, and in the process he killed the baby.  Though that may have been politically satisfying to half the country, it did not convey Trust as next time, your baby may be sacrificed.

    The second way to lose your job is to lose the respect and support of your department.  We’ve all had incompetent bosses – the owner’s son, the wrong promotion, the desperate owner.  Comey was earnest and well meaning, but he did not represent his department well.  He overstepped; he spouted opinions when representing a department dedicated to facts; he attempted to circumvent the process in a department concerned entirely with process.  He lost his department’s respect.

    So Comey failed on both counts.  He could not be trusted to paint within the proper lines in doing his job and he lost the respect and support of his department.  He deserved to be fired.

     

     

    • #8
  9. Steve C. Member
    Steve C.
    @user_531302

    My only regret is this comes across as another in a series of management by Sennett. (Keystone Cops)

    Really, they deliver the letter to the DOJ while Comey is making a speech in LA. And no I don’t think this is some kind of Jedi insult trick.

    Generally I’m supportive of the policies but I wish they could operate with a bit more polish.

     

    • #9
  10. Snirtler Inactive
    Snirtler
    @Snirtler

    Jules PA (View Comment):
    Thank you for the clarity of this post.

    Ditto.

    • #10
  11. Trinity Waters Inactive
    Trinity Waters
    @TrinityWaters

    Paul A. Rahe: Worse, he opened himself up to being removed by Donald Trump, about whom I have the gravest doubts. But those doubts don’t poison my view of Mr. Rosenstein.

    In spite of this bias, he gets it right.  Good job, professor!

    • #11
  12. Percival Thatcher
    Percival
    @Percival

    The way Comey went about the email investigation was wrong. Turn over the findings to DoJ and let them bring charges or not. Since Lynch had recused herself, the Assistant Secretary could decide. Whatever the decision, the FBI Director had no business conducting that weird press conference where he outlined the case against Clinton and then promulgated the novel “no reasonable prosecutor” standard. Because he did that, when the emails were found on Weiner’s computer, Comey had no choice but reopen the investigation. If he hadn’t and after the election it came out that they had existed, Congress would have come after him with a vengeance.

    • #12
  13. RightAngles Member
    RightAngles
    @RightAngles

    Percival (View Comment):
    The way Comey went about the email investigation was wrong. Turn over the findings to DoJ and let them bring charges or not. Since Lynch had recused herself, the Assistant Secretary could decide. Whatever the decision, the FBI Director had no business conducting that weird press conference where he outlined the case against Clinton and then promulgated the novel “no reasonable prosecutor” standard. Because he did that, when the emails were found on Weiner’s computer, Comey had no choice but reopen the investigation. If he hadn’t and after the election it came out that they had existed, Congress would have come after him with a vengeance.

    That’s it exactly. He did this to himself really. And that part about “intent”?!

    • #13
  14. Mike LaRoche Inactive
    Mike LaRoche
    @MikeLaRoche

    Comey is a clown.

    • #14
  15. EHerring Coolidge
    EHerring
    @EHerring

    There are many good people in the FBI, I am sure.  The media and the partisans in the agency are killing their reputation.  Look at what we have heard since, that FBI agents were crying and saying Trump had declared war on them and they would fight back.  Look at Schumer’s statement that you don’t cross them because they will get you back.  Trust, once lost, is hard to get back.

    • #15
  16. Songwriter Inactive
    Songwriter
    @user_19450

    It’s a shame none of the MSM can present the facts of this situation so plainly and without all the Left-wing hysteria.

    • #16
  17. Arizona Patriot Member
    Arizona Patriot
    @ArizonaPatriot

    RightAngles (View Comment):

    Percival (View Comment):
    The way Comey went about the email investigation was wrong. Turn over the findings to DoJ and let them bring charges or not. Since Lynch had recused herself, the Assistant Secretary could decide. Whatever the decision, the FBI Director had no business conducting that weird press conference where he outlined the case against Clinton and then promulgated the novel “no reasonable prosecutor” standard. Because he did that, when the emails were found on Weiner’s computer, Comey had no choice but reopen the investigation. If he hadn’t and after the election it came out that they had existed, Congress would have come after him with a vengeance.

    That’s it exactly. He did this to himself really. And that part about “intent”?!

    I think that you are incorrect as a matter of FBI procedure, about which I am admittedly no expert.  I did just look at the FBI guidelines and explained my impression it in the comments to Richard Epstein’s post on the issue.  I think that it is worth repeating here.

    The Clinton investigation was a “sensitive criminal matter” defined to include ” is any alleged criminal conduct involving corrupt action by a public official or political candidate.”  Regarding the FBI’s duties, the guidelines state:

    When, during an investigation, a matter appears to arguably warrant prosecution, the Special Agent shall present the relevant facts to the appropriate federal prosecutor. In every sensitive criminal matter, the FBI shall notify the appropriate federal prosecutor of the termination of an investigation within 30 days of such termination. Information on investigations which have been closed shall be available on request to a United States Attorney or his designee or an appropriate Department of Justice official.

    Under these guidelines, I don’t think that the FBI has the option to “[t]urn over the findings to DoJ and let them bring charges or not.”  Turning over the findings to DoJ is appropriate only if the FBI has determined that the “matter appears to arguably warrant prosecution.”  If not, the FBI’s job is to terminate the investigation and so inform the DoJ.

    Don’t get me wrong — in this instance, I think that the facts of the case did “arguably warrant prosecution.”  But my impression is that for the FBI to refer the matter to the DOJ would implicitly mean that the FBI had determined that the matter did “arguably warrant prosecution” — which would have been a major indictment of Clinton (using indictment in the colloquial sense, not the technical sense).

    • #17
  18. Rodin Member
    Rodin
    @Rodin

    Arizona Patriot (View Comment):
    [M]y impression is that for the FBI to refer the matter to the DOJ would implicitly mean that the FBI had determined that the matter did “arguably warrant prosecution” — which would have been a major indictment of Clinton (using indictment in the colloquial sense, not the technical sense).

    But that referral need not be public nor announced. Therefore the FBI would be publicly neutral and it would be up to the DOJ to characterize the ultimate decision and the evidence upon which it was based.

    • #18
  19. Percival Thatcher
    Percival
    @Percival

    Arizona Patriot (View Comment):

    RightAngles (View Comment):

    Percival (View Comment):
    The way Comey went about the email investigation was wrong. Turn over the findings to DoJ and let them bring charges or not. Since Lynch had recused herself, the Assistant Secretary could decide. Whatever the decision, the FBI Director had no business conducting that weird press conference where he outlined the case against Clinton and then promulgated the novel “no reasonable prosecutor” standard. Because he did that, when the emails were found on Weiner’s computer, Comey had no choice but reopen the investigation. If he hadn’t and after the election it came out that they had existed, Congress would have come after him with a vengeance.

    That’s it exactly. He did this to himself really. And that part about “intent”?!

    I think that you are incorrect as a matter of FBI procedure, about which I am admittedly no expert. I did just look at the FBI guidelines and explained my impression it in the comments to Richard Epstein’s post on the issue. I think that it is worth repeating here.

    The Clinton investigation was a “sensitive criminal matter” defined to include ” is any alleged criminal conduct involving corrupt action by a public official or political candidate.” Regarding the FBI’s duties, the guidelines state:

    When, during an investigation, a matter appears to arguably warrant prosecution, the Special Agent shall present the relevant facts to the appropriate federal prosecutor. In every sensitive criminal matter, the FBI shall notify the appropriate federal prosecutor of the termination of an investigation within 30 days of such termination. Information on investigations which have been closed shall be available on request to a United States Attorney or his designee or an appropriate Department of Justice official.

    Under these guidelines, I don’t think that the FBI has the option to “[t]urn over the findings to DoJ and let them bring charges or not.” Turning over the findings to DoJ is appropriate only if the FBI has determined that the “matter appears to arguably warrant prosecution.” If not, the FBI’s job is to terminate the investigation and so inform the DoJ.

    Don’t get me wrong — in this instance, I think that the facts of the case did “arguably warrant prosecution.” But my impression is that for the FBI to refer the matter to the DOJ would implicitly mean that the FBI had determined that the matter did “arguably warrant prosecution” — which would have been a major indictment of Clinton (using indictment in the colloquial sense, not the technical sense).

    You know more about it than I do. I would be surprised if the FBI doesn’t include a “why we do not recommend prosecution” synopsis of some kind, but if that’s they way they do it, they should have done it that way. In any case, they don’t do what Comey did and call a press conference.

    • #19
  20. EHerring Coolidge
    EHerring
    @EHerring

    Anybody who can’t see intent to break the law in what Clinton did shouldn’t be leading any agency.

    • #20
  21. tabula rasa Inactive
    tabula rasa
    @tabularasa

    I agree that Comey deserved to be fired.

    However, is it possible to have fired him in a more amateurish manner?

    The president’s communications team was taken unaware, and the defenses of President Trump’s action have been incoherent and inconsistent.

    The president and the Trump White House have done some good things (including letting Comey go), but as far as I can tell, the only thing that’s been thought all the way through was the Gorsuch nomination.

    Through incompetence, this is now going to be a big, long, and ugly story.

    Sigh!

    • #21
  22. Percival Thatcher
    Percival
    @Percival

    tabula rasa (View Comment):
    I agree that Comey deserved to be fired.

    However, is it possible to have fired him in a more amateurish manner?

    The president’s communications team was taken unaware, and the defenses of President Trump’s action have been incoherent and inconsistent.

    The president and the Trump White House have done some good things (including letting Comey go), but as far as I can tell, the only thing that’s been thought all the way through was the Gorsuch nomination.

    Through incompetence, this is now going to be a big, long, and ugly story.

    Sigh!

    I’d just as soon have access to his work computer before he could delete all the “yoga routines.”

    • #22
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