Yeomans Work

Is Comey Flap Giving Congress Cover?

April 19, 2018

As James Comey continues his book promotion, it has become painfully clear – as predicted – that the tour is another expression of Comey’s hubris that is likely to do more harm than good. He has gone toe-to-toe with Trump, who has been tweeting back insults as if he couldn’t care less about the country or its institutions. Unfortunately, Comey has tangled with Trump on the playground, making their exchange a distasteful round of political mud wrestling.

A few points merit highlighting. First, when it comes to veracity, there is no contest. For all his flaws, Comey comes across – as he did in his congressional testimony – as a superlative fact witness. He tells a story complete with compelling narrative structure and enriching detail. Trump, by contrast, is stunningly inarticulate, scattered, illogical, and transparently self-serving. Oh, and he lies shamelessly, spouting easily disprovable nonsense.

Indeed, Comey’s problem has never been his truthfulness. He has always been convincing when he sticks to the facts. His troubles arise from his recurring belief that he must reject received wisdom because he sees a better way. Frequently, that better way reflects his view that he can better protect institutions and himself than would conventional approaches. His highly inappropriate editorial comments on Hillary Clinton’s handling of classified information were an obvious effort to assuage the political outrage he knew would come from the right after he announced there would be no prosecution. His usurpation of the powers of the Attorney General and the rest of the Department of Justice in making that announcement rested on his view that the announcement would be viewed as political coming from the proper officials.

Comey’s consistent explanation for sending his inexcusable letter in October reopening the Clinton investigation is the most devastating example of this character flaw. He has stated that he faced a difficult choice and, assuming Clinton would win, acted out of concern that Clinton would seem less legitimate as president if he waited to announce the reopening after she was elected. He made the political calculation that she was destined to win and chose on that basis. In reality, he faced no choice at all. Department of Justice policy has long been to avoid significant action within sixty days of an election because the best protection against claims of political law enforcement is to stand down during the period when action might affect the outcome. Comey chose to act and swung the election to Trump.

Comey’s inability to confess that he blew it is telling. He insists that he would make the same disastrous decisions again. That seems to be his enormous pride and self-regard blinding him.

Comey’s mistakes and his unconvincing explanations have damaged seriously the institutions he purports to have wanted to protect. By introducing political calculations into his conduct and putting Trump into office, he hurt the people of the FBI and the attorneys of the Department of Justice. They will suffer that harm every day Trump remains in office and long after. At the very least, Comey should donate the proceeds from his book to help the men and women of these institutions. He should not be permitted to cash in on the pain he inflicted.

Comey stated that he hoped Trump would not be impeached, preferring that the voters correct their error by turning him out of office. He seems to regard voters as children who need to suffer the consequences of their mistake and fix it themselves. Indeed a political solution may be the best outcome for the country, but it is irresponsible for a man who purports to represent the rule of law to take impeachment off the table. Impeachment is our constitutionally prescribed method for holding a lawless president to account. Nobody should dismiss the possibility of impeachment until we know the facts. If Trump has committed high crimes and misdemeanors, he must not remain president.

Comey criticized Rod Rosenstein for his role in Comey’s firing. That criticism seems appropriate based on what we currently know. Rosenstein drafted the memo that served as the phony cover for Trump to fire Comey. Rosenstein stated that the public does not know all of the facts regarding his participation. Perhaps those facts will provide a convincing explanation why Rosenstein is comfortable supervising the investigation into that episode.

Comey’s appearances certainly have not furthered the Mueller investigation and they have harmed the political climate in which it operates. As explained in previous posts, Comey’s many public statements can complicate Mueller’s task by creating contradictions and giving Trump and his associates material on which to build defenses. His descent into the political tit-for-tat with Trump weakens his credibility.

His entry into the political arena comes at a particularly perilous time for Mueller and Rosenstein, both of whom Trump is itching to fire. Comey’s appearances have combined with the search of Michael Cohen’s world to send Trump into a frenzy of furious, vicious, and false tweets. The Fox News propaganda machine has gone into overdrive. Sean (the third client) Hannity has gone so far as to depict Mueller as the head of a crime family.

In response, a few Republicans in the Senate have endorsed legislation to require speedy judicial review of a Mueller firing and Chair Grassley has agreed to allow it to be marked up in the Senate Judiciary Committee. That’s great and supporters should keep pushing the legislation, but it will not become law. Majority Leader McConnell has stated that he will not bring it to the Senate floor. The House will not pass it and Trump would veto it in any event. Indeed, a weak vote in support of the legislation would signal to Trump that he could get away with firings. In any event McConnell’s statement gives Trump assurance that he can fire away without a devastating response from Congress.

In addition, Republicans in Congress may take comfort in the opening of the Cohen investigation by the U.S. Attorney for the Southern District of New York. That investigation, though likely based on information referred by Mueller, is independent of the Mueller investigation. If Trump fired Mueller or Rosenstein, the New York investigation would continue. While that investigation is focused in the immediate term on Michael Cohen, it can easily expand to cover nearly everything Mueller is investigating. Reluctant Republicans, therefore, can express their dismay at Mueller’s firing, but rationalize that no action is necessary because we have avoided a constitutional crisis by transferring protection of the rule of law to the Southern District of New York. Between the existence of the New York investigation and the efforts of the right-wing propaganda machine to delegitimize Mueller in the eyes of the public, a shameless majority of Congress may have the excuses it needs to sit on its hands.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.