RUTHFULLY YOURS

If a FBI director is doing his job, we probably should neither see nor hear of him much on television.

The FBI director by his very office holds enormous power. And like the IRS director, by definition he or she must show restraint given the vast resources at his discretion and thus the potential for abuse. In other words, we want a FBI director to exude coolness, stay dispassionate, and remain professional. I don’t think that has ever been a description that fit Director James Comey.

Comey’s nadir came in the summer of 2016 when, confused over the investigatory role of the FBI and the prosecutorial prerogatives of the Justice Department, he de facto turned the FBI into investigator, prosecutor, judge, and jury in presenting damning evidence against Hillary Clinton, then nullifying it, then reopening the case, then re-reopening it and backing off — all in front of television cameras in the midst of a heated presidential campaign.

And then after doing all that, Comey confused the act with its intent, and as a veritable legislator reinvented statutes about communicating classified information by suggesting that even if one likely committed a felony, but did not intend to (not a proven assertion), then it wasn’t really a felony.

Comey’s behavior was never properly addressed. His recent performance in front of Congress likely sealed his fate. We do not expect our FBI director to whine, in teenager fashion, about being treated unfairly, as he alleged when Loretta Lynch dumped the Clinton e-mail scandal in his lap. (A good FBI director, of course, would simply have run the investigation, presented the findings to the Justice Department, and then have let them deal with it (if not Lynch, then someone else). Comey misrepresented the volume of Huma Abedin’s improper e-mails; and in general always fell back on loud assertions of FBI integrity rather than displaying it through his behavior and statements.

Nor did Comey have a reservoir of good will. Long ago, he acted bizarrely in the John Ashcroft hospitalization melodrama; he was responsible for the career of Special Prosecutor Patrick Fitzgerald who miscarried justice in the case of Scooter Libby (not to mention Fitzgerald’s own subsequent Conrad Black prosecution). His legacy is that Hillary Clinton paid no price for illegally setting up an improper e-mail server, destroying evidence, and communicating classified material in an insecure fashion.

Comey seems to think that he could freely discuss the charges of Russian collusion, but not so transparently the far stronger evidence of unlawful unmasking of Americans caught up in (or in fact targeted by) government surveillance — apparently in understandable fear that the Democrats and media posed the greater danger to his career.

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