Yeomans Work

Jim Comey, Go Away

March 20, 2018

Because Donald Trump poses an existential threat to our democracy, reasonable people are tempted to embrace every denunciation of him and every step designed to further expose his wrongdoing.

Reasonable people, therefore, have been quick to embrace two bundles of things over the past turbulent week. The first consists of renewed calls for Congress to pass legislation giving Special Counsel Robert Mueller job security. The second includes the stirring denunciation of Trump by fired former FBI Deputy Director Andrew McCabe and the coming release of fired FBI Director Jim Comey’s book. Each bundle deserves strategic thought.

As Trump exhibited heightened levels of panic and desperation, advocates and some Democratic members of Congress renewed calls for Congress to pass legislation protecting Mueller from Trump’s firing wrath. Some called for inclusion of language in the spending bill that must pass this week to keep the government operating. Republican leaders, however, have resisted, saying they feel confident Trump will not pull the trigger. Plainly, most Republicans have not yet decided that taking on Trump is politically wise. It seems doubtful that freestanding legislation could win majorities in both houses.

Inclusion of language in the omnibus spending bill is unlikely and that’s probably a good thing for Democrats. Trump likely would veto a bill with a Mueller protection rider and Congress would not be able to muster two-thirds of each house to override the veto. That would leave Democrats with a government shutdown and – because they are the party of responsible government – an urge to capitulate.

Democrats, therefore, must recognize that their effort to enact legislation – whether through a standalone bill or language in the omnibus spending bill – will not result in a legal prohibition on Mueller’s firing. It is “message” legislation and they must be confident that it will deliver the right message at the right time. A weak effort may embolden Trump to do what he has been eager to do since Mueller’s appointment. Any action that speeds up that day is not helpful. The goal should be to prevent the Mueller firing frenzy from coming to a head until Mueller is done or so close to done that the investigation will not be impeded. Protectors of the Mueller investigation may be better off mobilizing and letting it be known that his firing will provoke a massive public response.

Mueller’s investigation has been strengthened by his success in keeping the investigation, himself, and his investigators out of the political fray. He has followed the traditional Justice Department playbook in refusing to discuss an ongoing investigation and refusing to allow the prosecutors to become media players. He has allowed his indictments to do the talking. In that way, he has operated on a higher plane than Trump, Trump’s flailing lawyers, Republican members of Congress, and the right-wing media, all of whom have pushed the notion that Mueller’s investigation is a politically driven, conflicted operation. Mueller has driven through them like a sealed-up tank through soldiers armed with spears.

Unfortunately, the greatest threat to this dynamic may come from Mueller’s key witnesses. The firing of Andrew McCabe provoked McCabe to issue a carefully prepared blast, proclaiming his innocence and alleging that his firing was a politically motivated effort to undercut his standing as a witness in the Russia probe. We don’t yet know enough about why McCabe was fired. We know that career investigators in the Inspector General’s office and the Office of Professional Responsibility recommended his firing. And we know that lying to either office can be a firing offense. But the rushed process to beat his retirement date, which appears to have been driven by Trump’s tweets and Sessions’s weakness, was outrageous.

McCabe was certainly entitled to his initial statement, but indications are that he intends to continue talking. That’s very satisfying for those of us who revel in a good anti-Trump rant, but harmful for Mueller’s investigation. McCabe’s continued engagement with the media would allow Trump and his allies to engage on equal terms, undercut McCabe’s effectiveness as a witness, and bring political taint to the investigation. McCabe should do his talking to Mueller and the grand jury until the investigation is done. Others can handle the public debate.

That goes for Jim Comey, as well. Comey has demonstrated the damage that his hubristic public utterances can do. He is now threatening further injury with release of his book in April, accompanied by an orgy of media appearances. Comey’s inability to follow longstanding Justice Department norms helped to give us Trump. During his July 2016 press conference announcing the closing of the FBI’s Clinton email investigation, he usurped the powers of his superiors in the Justice Department and opined irresponsibly on Clinton’s alleged reckless handling of classified information. He compounded his misconduct in congressional testimony before sealing his infamy by informing Congress – and the country – that the FBI was reopening the investigation eleven days before the election, only to close it again days later. His conduct consistently has demonstrated his belief that he is wiser than the norms of our law enforcement institutions and need not be bound by the limits imposed on lesser leaders. Since leaving office, he has issued a stream of jaw-droppingly sanctimonious tweets. His extraordinary belief in his superiority has been misplaced.

Comey’s firing is a fundamental act in Trump’s effort to impede Mueller’s investigation and Comey is a crucial witness. He is already a controversial political figure, criticized from the left and right. Any statements he makes in his book or during his book tour will surely inflame further public opinion and immerse him in political debate with Trump and his allies. That can only weaken his credibility as a witness. Although the financial rewards of a bestseller beckon, he would do Mueller and the country a favor by cashing in after the investigation has run its course.

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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.