Blog No. 141. The Comey Firing: Why Now? and What Now?

The firing of James Comey is the latest bizarre chapter in the brief history of the Trump administration. The move stunned both Democrats and Republicans, and even many who had been quite critical of Comey found it difficult to defend the timing and manner of his dismissal. It has created a controversy that may not rise to the level of the firestorm created by Richard Nixon’s “Saturday Night Massacre,” but it is not likely to disappear quickly.

The stated reason for Comey’s firing was his handling of the investigation into Hillary Clinton’s email. A memorandum from Deputy Attorney General Rod J. Rosenstein dated May 9 cited Comey’s press conference on July 5, at which he announced a decision not to indict Clinton but was harshly critical of Clinton’s conduct, and his statement on October 28, at which he announced the reopening of the Clinton investigation. Rosenstein’s memorandum quoted criticisms of Comey’s actions by several former Attorneys General and Deputy Attorneys General. All of the criticisms, however, had been made publicly several months ago. As Aaron Blake observed in the Washington Post, “The letter doesn’t actually add much to the public record or suggest extensive behind-the-scenes fact-gathering; it’s basically a summary anyone could have written in an afternoon.”

Several observers have questioned whether the handling of the Clinton email matter was in fact the true reason for Comey’s firing, pointing out that the actions complained of took place several months ago, and asked “Why now?” It is also noteworthy that, while Trump believed that Clinton should have been indicted–a point that was not made in the Rosenstein memorandum–he hardly objected to Comey’s criticism of Clinton. And he was loudly supportive of Comey’s announcement on October 28 concerning the newly-discovered Clinton emails. Moreover, there are other circumstances suggesting that the email matter may may have been a pretext for the firing.

Most recently, Trump could not have been pleased by Comey’s testimony on March 20 that the FBI was continuing to investigate Russian interference in the 2016 election and possible links between the Trump campaign and the Russian government–and whether there was any coordination between them. In addition, Comey testified bluntly at the same hearing that he knew of no information to support Trump’s claim of having been wiretapped by the Obama administration. While Trump did not react publicly to Comey’s testimony on either point,  he soon  made it clear that he was still rankled by Comey’s conclusion that Clinton had not committed a criminal offense. In a Fox Business interview aired on April 12:

Don’t forget, when Jim Comey came out, he saved Hillary Clinton.  People don’t realize that.  He saved her life, because — I call it Comey won. And I joke about it a little bit.

When he was reading those charges, she was guilty on every charge.  And then he said, she was essentially OK. But he — she wasn’t OK, because she was guilty on every charge.

And in the same interview, Trump hedged as to whether he would retain Comey. He stated that he had confidence in Comey but added “We’ll see what happens. You know, it’s going to be interesting.”

Not surprisingly, the Comey firing has brought calls by Senators Richard Blumenthal and Charles Schumer and other Democrats for the appointment of an “independent special prosecutor” (or, more accurately, special counsel) to head the Russian investigation. Since Attorney General Sessions has recused himself from that investigation, they have called on Deputy Attorney General Rosenstein to take the necessary action. That call, however, overlooks a significant point: Rosenstein’s own role in the Comey firing. If his conduct should appear questionable in any major respect, it would cast a serious cloud over both his willingness and capacity to appoint and supervise a special counsel.

Rosenstein was a respected federal prosecutor whose appointment was relatively uncontroversial and he was confirmed by a 94-6 vote on April 25. It seems unlikely, however, that, having arrived at the Justice Department on April 26, he immediately launched into an evaluation of the FBI Director on his own initiative. Presumably, he was given the assignment by Attorney General Sessions and it would be important to know exactly what the terms of that assignment were. Was he asked to make an objective assessment or was he given the task of finding grounds to support a desired conclusion? That question suggests numerous others.  For example: What data supports Rosenstein’s assertion that damage to the FBI’s reputation over the past year “is deeply troubling to many Department employees and veterans, legislators and citizens”? What did his assessment consist of beyond assembling stale press clippings? With whom did he have contact in making his evaluation? Did he consider whether Comey should be given an opportunity to respond to the criticisms against him?  Did he consider the implications of terminating Comey while the FBI’s Russia investigation is ongoing? Did he discuss the status of the Russia investigation with Comey or anyone else in the FBI?

In order to resolve such questions, and to permit matters to move forward expeditiously, it would clearly be appropriate, and perhaps essential, for Rosenstein to pay a visit Capitol Hill and provide testimony at the earliest opportunity.

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Trump had nothing to say on the subject yesterday but this morning was on Twitter with some dawn tweets offering a defense of his action that included not only previous criticism of Comey by Democrats, but a personal attack on Senator Blumenthal and retweeted support from the Drudge Report. One can only say, in one of the President’s own favorite Twitter expressions, “Sad.”