RUTHFULLY YOURS

They were among the most powerful men of the last decade. They commanded armies of armed agents, had the ability to bug and wiretap almost anyone, and had virtually unlimited budgets. They were the leadership of the FBI, the CIA and the director of national intelligence under President Obama. Each day, it becomes clearer that they are the real abusers of power in this drama.

The book by former FBI Director James Comey and the daily hyperbolic John Brennan sound bites are perhaps the final reveal of just how much hubris and vitriol they had. Comey’s book, according to reports, contains nothing new of legal consequence to Trump (while suggesting that former Attorney General Loretta Lynch has something to worry about), but it unmasks the hatred that Comey had for Donald Trump from the beginning. It impeaches Comey’s fitness to have ever held high, nonpartisan office.

Whether you are a Democrat who can’t stand Trump, a Hillary Clinton supporter who feels robbed by Comey, or a Trump supporter, any use of wiretapping and vast prosecutorial machinery against our political campaigns and sitting presidents always has to be viewed skeptically and should meet the highest standards of conduct and impartiality. The post-election actions of these former officials makes suspect their actions as officials.

It was, after all, Comey who went to the president during the transition seeking a one-on-one meeting to tell him about the inflammatory dossier, but who critically omitted telling the president that the dossier was a product of the Clinton campaign and the Democratic National Committee. These facts, he knew, if revealed at that moment in January, would have ended further inquiry. This was no effort to inform the president and douse the fires of unverified and salacious information, but one to inflame the president and spread the stories everywhere.

President Trump recently tweeted that firing former FBI director James Comey was something he was glad he did.

James Comey is a proven LEAKER & LIAR. Virtually everyone in Washington thought he should be fired for the terrible job he did-until he was, in fact, fired. He leaked CLASSIFIED information, for which he should be prosecuted. He lied to Congress under OATH. He is a weak and…..

— Donald J. Trump (@realDonaldTrump) April 13, 2018

….untruthful slime ball who was, as time has proven, a terrible Director of the FBI. His handling of the Crooked Hillary Clinton case, and the events surrounding it, will go down as one of the worst “botch jobs” of history. It was my great honor to fire James Comey!

— Donald J. Trump (@realDonaldTrump) April 13, 2018

There’s some merit to that thought, because it turns out Comey wasn’t just the one at the heart of appointing his buddy, Robert Mueller to his current ‘get-Trump’ role as special counsel for the very-bogus Russia collusion investigation. He as also the guy who appointed Scooter Libby’s dishonest prosecutor, Special Counsel Patrick Fitzgerald, to a similar post.

Here’s what the Wall Street Journal editorial page (subscription) noted in its editorial titled ‘Justice for Scooter Libby:’

As it happens, Mr. Fitzgerald was appointed by his good friend, James Comey, who was then Deputy Attorney General. This is the Jim Comey who told Congress last year that his goal in leaking information to the press about his conversations with Donald Trump after he was fired was to trigger a special counsel investigation that is now led by Mr. Mueller. This special counsel’s work isn’t done, but the Fitzgerald episode is worth keeping in mind as it unfolds.

Which makes one wonder if the reason President Trump pardoned Libby, who committed no crime and who got the book thrown at him, was to root out all markers of Comey’s destructive presence, which included his history of appointing dishonest prosecutors, first Fitzgerald, and now Mueller, who has a history of problematic prosecutions-at-any-cost of his own. Everyone knew Libby was innocent, but President Bush put pleasing the left first in his failing to pardon him. Trump killed two birds with one stone by pardoning Libby, a guy he said he doesn’t even know, rebuking the pious, pompous Comey, as well as the status-seeking Bush.

President Trump now has real legal peril. The potential jeopardy stems from the investigation that came to light this week when the FBI conducted raids on the office and residences of his lawyer and self-professed “fixer,” Michael Cohen.

I’ve never thought “collusion with Russia” posed jeopardy. If there had been anything criminal to that storyline, the politicized anti-Trump factions in the intelligence and law-enforcement agencies would have leaked it. And, notwithstanding Trump’s nauseating nods to Putin, the administration has taken enough aggressive steps against Russia that it is past time for the Kremlin to broadcast the big kompromat file if it exists.

I’ve also never thought Special Counsel Robert Mueller’s other known angle, obstruction, posed a great risk. There is a line between foolishness and crime. For important policy reasons, a president should not weigh in with the FBI director on the merits of investigating a friend and political ally; and it would be better if he did not make personnel moves that could be perceived as efforts to influence witnesses or affect the course of an investigation. But as long as a president’s actions — e.g., firing the FBI director, discussing the possibility of pardons — are on their face legal and within his legitimate constitutional authority, I do not believe they can validly predicate an obstruction prosecution. (In theory, they could be grist for impeachment, which involves a political inquiry into abuse of power, not a legal proceeding to establish the essential elements of a statutory crime.)

The matter now under investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY), however, is a very live criminal investigation. Anyone potentially connected to it should be worried.

Much of the commentary about the SDNY investigation puts the cart before the horse. When Cohen’s law office, hotel residence, and home were searched pursuant to court-approved warrants this week, there were howls about a purportedly unconscionable violation of the attorney–client privilege. As I pointed out in the aftermath, however, whether this was an egregious constitutional affront or textbook investigative rigor depends on (a) exactly what was under investigation and (b) whether the materials sought from Cohen were, in fact, privileged attorney–client communications.