RUTHFULLY YOURS

With all the calls for an independent prosecutor for President Trump after his firing of the FBI’s James Comey, why not move the investigation to the House Judiciary Committee? It could get right down to whether the president has done anything worthy of impeachment.

It’s not that I think the president is guilty. It’s just the only properly constitutional way to investigate this, or any, president. No one has adduced any evidence of wrongdoing by Mr. Trump. I’d like to see him cleared. But if he is to be investigated for crimes or misdemeanors, the House, with its impeachment authority, is the venue.

The Democrats are outraged at the thought that Mr. Trump, though he denies it, may have fired the director because the FBI boss was investigating the president. But if Mr. Comey was investigating the president, that would be grounds to take the investigation away from him (or simply to fire him). If the president is the target, the matter belongs to the House.

Like others in my generation, I came to this view through the experience of Watergate, when President Nixon fired special prosecutor Archibald Cox, and Whitewater, when President Clinton was pursued by independent counsel Kenneth Starr.

Cox was brought in after Attorney General Elliot Richardson —ignoring the separation of powers—made a deal with Congress to diminish the president’s authority. The deal was that Cox would be dismissed only for cause. Cox subpoenaed Nixon and refused a compromise. The president then ordered the attorney general to fire him. An insubordinate Richardson and his deputy refused. It took Solicitor General Robert Bork to do the constitutional deed.

Eventually, the Judiciary Committee hired staff and went after Nixon, voting out three articles of impeachment (obstruction, abuse of power, and contempt of Congress). Before the House could decide whether to press the charges, Nixon quit. CONTINUE AT SITE

Testifying last week before the Senate Judiciary Committee, James Comey recalled a moment that should have held more significance for him than it did. At the height of the presidential campaign, President Obama’s attorney general, Loretta Lynch, had chosen to meet with Bill Clinton on an airport tarmac. That, said the now-former FBI director, “was the capper for me.” Hillary Clinton’s emails were being probed, but Ms. Lynch was too conflicted to “credibly complete the investigation.” So Mr. Comey stepped in.

Donald Trump and senior Justice Department leaders might appreciate the impulse. According to Democrats and the media, Attorney General Jeff Sessions is too conflicted to recommend sacking Mr. Comey; the Trump administration is too conflicted to name a successor; the entire Justice Department and the Republican Congress are too conflicted to conduct true oversight.

Entirely missing from this narrative is the man who was perhaps the most conflicted of all: James Comey. The FBI head was so good at portraying himself as Washington’s last Boy Scout—the only person who ever did the right thing—that few noticed his repeated refusal to do the right thing. Mr. Comey might still have a job if, on any number of occasions, he’d acknowledged his own conflicts and stepped back.

Deputy Attorney General Rod Rosenstein’s memo to Mr. Sessions expertly excoriated Mr. Comey’s decision to “usurp” Ms. Lynch’s authority and his “gratuitously” fulsome July press conference. But Mr. Comey’s dereliction of duty preceded that—by his own admission. Remember, he testified that the Lynch-Clinton meeting was but the “capper.” Before that, he told lawmakers, “a number of things had gone on which I can’t talk about yet that made me worry the department leadership could not credibly complete the investigation.”

We don’t know what these things were, but it seems the head of the FBI had lost confidence—even before TarmacGate—that the Justice Department was playing it anywhere near straight in the Clinton probe. So what should an honor-bound FBI director do in such a conflicted situation? Call it out. Demand that Ms. Lynch recuse herself and insist on an appropriate process to ensure public confidence. Resign, if need be. Instead Mr. Comey waited until the situation had become a crisis, and then he ignored all protocol to make himself investigator, attorney, judge and jury.

By the end of that 15-minute July press conference, Mr. Comey had infuriated both Republicans and Democrats, who were now universally convinced he was playing politics. He’d undermined his and his agency’s integrity. No matter his motives, an honor-bound director would have acknowledged that his decision jeopardized his ability to continue effectively leading the agency. He would have chosen in the following days—or at least after the election—to step down. Mr. Comey didn’t.

Which leads us to Mr. Comey’s most recent and obvious conflict of all—likely a primary reason he was fired: the leaks investigation (or rather non-investigation). So far the only crime that has come to light from this Russia probe is the rampant and felonious leaking of classified information to the press. Mr. Trump and the GOP rightly see this as a major risk to national security. While the National Security Agency has been cooperating with the House Intelligence Committee and allowing lawmakers to review documents that might show the source of the leaks, Mr. Comey’s FBI has resolutely refused to do the same.

Why? The press reports that the FBI obtained a secret court order last summer to monitor Carter Page. It’s still unclear exactly under what circumstances the government was listening in on former Trump adviser Mike Flynn and the Russian ambassador, but the FBI was likely involved there, too. Meaning Mr. Comey’s agency is a prime possible source of the leaks.CONTINUE AT SITE

An absurd argument is now being put forward by some Democratic ideologues: namely that President Trump engaged in the crime of obstructing justice by firing FBI Director James Comey. Whatever one may think of the President’s decision to fire Comey as a matter of policy, there is absolutely no basis for concluding that the President engaged in a crime by exercising his statutory and constitutional authority to fire director Comey. As Comey himself wrote in his letter to the FBI, no one should doubt the authority of the President to fire the Director for any reason or no reason.

It simply cannot be a crime for a public official, whether the President or anyone else, to exercise his or her statutory and constitutional authority to hire or fire another public official. For something to be a crime there must be both an actus reus and mens rea – that is, a criminal act accompanied by a criminal state of mind. Even assuming that President Trump was improperly motivated in firing Comey, motive alone can never constitute a crime. There must be an unlawful act. And exercising constitutional and statutory power cannot be the actus reusof a crime.

So let’s put this nonsense behind us and not criminalize policy differences as extremists in both parties have tried to do. Republican and Democratic partisans often resort to the criminal law as a way of demonizing their political enemies. “Lock her up,” was the cry of Republican partisans against Hillary Clinton regarding her misuse of her email server. Now “obstruction of justice” is the “lock him up” cry of partisan Democrats who disagree with President Trump’s decision to fire Comey. I opposed the criminalization of policy differences when Texas Governor Perry and Congressman Tom Delay were indicted, and I strongly oppose the investigation now being conducted against Prime Minister Netanyahu. The criminal law should be used as the last resort against elected officials, not as the opening salvo in a political knife-fight.

Before the election, Nancy Pelosi had hinted that Hillary would fire FBI Director James Comey.

“Maybe he’s not in the right job,” the House Dem leader had coyly suggested. “I think that we have to just get through this election and just see what the casualties are along the way.”

The FBI Director was at risk of becoming a “casualty” over his handling of the Hillary investigation.

There was no outrage and no front page editorials at the New York Times and the Washington Post. No comparisons to Watergate or calls for an investigation. A top Dem suggesting that the FBI Director would have to leave because he was investigating another top Dem was just “good government.”

And there would have been none of the hypocritical media outcry if the election had gone another way and Comey were being told to pack his bags by President Hillary Clinton.

Hillary Clinton’s campaign manager had also hinted that Comey might have to step down because of his bias against Hillary. Now he claims that Trump’s firing of Comey “terrifies” him.

After Comey’s letter, Schumer had declared, “I do not have confidence in him any longer.” That is what top government officials say before demanding someone’s job. But now Schumer is outraged. “If we don’t get a special prosecutor, every American will rightfully suspect that the decision to fire #Comey was part of a cover-up,” he tweeted.

Were the Dem calls for Comey to resign also part of a cover-up?

Harry Reid had called on Comey to resign. Congressman Steve Cohen even wrote an op-ed titled, “For the Sake of the FBI, Comey Should Resign.” Now he touts Comey as a recipient for the Profiles in Courage award and accuses Trump of firing him because Comey “threatened his presidency.”

From Comey must go for investigating Hillary to Comey must get an award for investigating Trump. Did Cohen want Comey to resign then because he threatened Hillary Clinton’s presidency?

The incoherently official position of the Dems is that Comey should have been forced out for investigating Hillary. But that Trump shouldn’t be allowed to fire him because that’s a cover-up.

President Trump has fired FBI director James Comey, who had made himself eminently fireable.

Last July, Comey took it upon himself to become not only the nation’s top policeman, but its top prosecutor, explaining in a long press conference that Hillary Clinton had clearly broken the law by hosting classified information on her private e-mail server, but that there was not “clear evidence that Secretary Clinton or her colleagues intended to violate laws.” As we observed at the time, the relevant statute does not require “intent,” only “gross negligence” — which adequately described the behavior Comey termed “reckless” and “extremely careless” — and, in any event, deciding whether to prosecute was not up to him, but to then-Attorney General Loretta Lynch. The entire event was, as longtime Justice Department hands noted, unprecedented.

Democrats, who in the wake of Tuesday evening’s news are breathless with Watergate comparisons, seem suddenly to have recalled their past enthusiasm for Comey’s “independence” and “integrity.”

Most Democrats have spent the last several months incensed at Comey, after he announced just days before November’s presidential election that the FBI was reopening its investigation into Hillary Clinton’s e-mails, based on evidence found on the computer of Anthony Weiner, husband of Clinton’s right-hand woman Huma Abedin. (Yesterday, the Justice Department confirmed that Abedin did in fact send classified information to Weiner’s unsecured e-mail account.) Democrats, among them then-Senate Minority Leader Harry Reid, suggested that Comey’s letter may have violated the Hatch Act, which restricts political activity by certain government officials. That anger intensified when, a few days later, Comey said, in effect, “Never mind,” and re-closed the reopened investigation, reaffirming the FBI’s previous conclusion: She broke the law, but so what?

On Tuesday evening, accounting for Comey’s termination, this sequence of events was laid out in a long memo by Deputy Attorney General Rod J. Rosenstein, whose tenure at the Department of Justice began just two weeks ago. Rosenstein’s presentation of the facts is fair and scrupulous. In addition to explaining how Comey repeatedly defied longstanding Justice Department precedent throughout the Clinton e-mail investigation, he cites critical comments from attorneys and deputy attorneys general from the last several administrations, both Republican and Democratic. Rosenstein rightly observes: “Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.” Indeed, the only person who did not agree is James Comey, who has seemed incapable of admitting obvious errors, and has in effect asserted that his investigative “independence” makes him accountable to no one.

Democrats, having spent the last several months accusing Comey of intervening to throw the presidential election to Donald Trump, are now suggesting that he is an indispensable man. Senator Brian Schatz declared on Twitter: “We are in a full-fledged constitutional crisis.”

Deep breaths, Senator.

Nixon. Watergate. Tuesday night massacre. Coup. Dictator. Impeachment. Those are the words political elites are throwing around after President Trump’s firing of FBI Director James Comey, and that’s in the news stories. The meltdown reflects the temper of the times and hostility to Mr. Trump, but it also ignores the need to repair the damage that Mr. Comey has done to the Justice Department and FBI.

Most of the political class loathes this Administration, and so the natural default is that it must be lying about the reasons for Mr. Comey’s dismissal. If you’re invested in the Trump-Russia collusion theory of the 2016 election, you assume this is a cover-up. The references to Mr. Comey’s handling of the Hillary Clinton investigation are an excuse, a deception, a Big Con.

Not that the White House does much to rebut these claims. A terse 6 p.m. press release doesn’t answer many questions. Neither Attorney General Jeff Sessions nor Deputy AG Rod Rosenstein held a press conference to explain their memos recommending dismissal. Mr. Trump managed to inject his ego even into his dismissal letter to Mr. Comey, saying that “I greatly appreciate you informing me, on three separate occasions, that I am not under investigation.”
And on Wednesday the White House descended into a leak-fest with aides depicting Mr. Trump as raging at Mr. Comey even as he was conflicted about firing him. This crowd couldn’t sell gold bars to inflationists.

Yet for those willing to take Mr. Rosenstein’s memo seriously, there are good reasons for canning Mr. Comey that don’t trade in conspiracy. And his arrival at Justice may also explain the timing of Mr. Comey’s firing.

Mr. Rosenstein was confirmed by the Senate only two weeks ago, and one of his obvious first tasks was to dig into the Russia probe because Mr. Sessions has recused himself. Senate Democrats demanded this during the confirmation hearing as they pressed him to name a special counsel. This also meant contemplating the role and responsibility of Mr. Comey and the FBI in the Justice Department hierarchy.

One concern of longtime prosecutors and former Justice officials is that Mr. Comey became a force unto himself. He didn’t tell Attorney General Loretta Lynch until the last minute that he would hold his July press event exonerating Mrs. Clinton. His excuse afterward was that Ms. Lynch was compromised after meeting with Bill Clinton on an airport tarmac. But then what about Deputy AG Sally Yates ? What was she, a potted plant?

Federal Judge and former Deputy AG Laurence Silberman laid out these and other concerns in these pages on Feb. 24. His conclusion—that Mr. Comey’s “performance was so inappropriate for an FBI director that I doubt the bureau will ever completely recover”—resonated widely across the government.

And it must have resonated with Mr. Rosenstein, who quotes Mr. Silberman in his memo to Mr. Sessions. He also quotes a long list of former Justice officials from both parties who have been highly critical of Mr. Comey’s violation of Justice Department standards. Mr. Rosenstein clearly understood he had to re-establish supervisory control over the FBI as a matter of accountable government.

This is one of the reasons we advised Mr. Sessions in January to seek Mr. Comey’s resignation, and if he refused to recommend that Mr. Trump fire him. The timing would have been better with the change of Administrations. But Mr. Sessions had to recuse himself from the Russia probe, and the scenario we recommended eventually took place when Mr. Rosenstein arrived.

If you read nothing else while fighting through the maelstrom around President Trump’s firing of FBI Director James Comey, read the full text of Deputy Attorney General Rod J. Rosenstein’s memorandum titled “Restoring Public Confidence in the FBI.”

Mr. Rosenstein’s memo makes meticulously clear the short version of this grandiose episode: Director Comey’s behavior violated numerous standards of federal prosecutorial procedure and lines of authority inside the Department of Justice.

Specifically, writes Mr. Rosenstein, “The Director was wrong to usurp the Attorney General’s authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution.”

Mr. Rosenstein cites a useful analysis of the Comey saga, published in the Washington Post, by former deputy attorneys general Jamie Gorelick and Larry Thompson. Mr. Comey’s conduct, they wrote, was “real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation.”

That is an apt metaphor—a kind of reality TV—for everything the dazed public is reading and hearing now about James Comey, the federal investigation into a Russian connection with the Trump campaign, and reveries about Watergate.

But I know where to begin: with the news in March 2015 that Secretary of State Hillary Clinton created a private email server in 2009. CONTINUE AT SITE