Some Questions for Mr. Comey…and the American People
Former FBI Director Jim Comey will surely face a barrage of questions when he testifies on Capitol Hill this week. I’ve always thought of him as an honorable man caught in impossible circumstances, and I still want to think that. However, recent disclosures are disconcerting, and have unexpectedly raised some questions in my mind.
Working with President Trump appears to have its unique challenges, and his missteps and tweeting turmoil in these initial days as the nation’s leader are already legendary. Perhaps that makes it even more important for us to put aside any biases about Trump (one way or another), so as not to allow them to blur our analysis. Let’s step back and consider objectively – if that’s even possible these days – the broader (and, indeed, future) implications of the activities of someone who was the nation’s most powerful, yet unelected, internal security official.
The circumstances here are unprecedented. Given all the focus on the ongoing Russia probe, it’s easy to forget that just a few weeks ago Hillary Clinton was blaming Comey for her electoral defeat. Now we seem to have suggestions that Comey was (is?) “trying to take down” her opponent Donald Trump.
Does this mean Comey was being even-handed? Not necessarily, according to Charles Krauthammer. In concluding that Comey “had to go,” Krauthammer made the further observation that the “cliche is that if you’ve infuriated both sides, it means you must be doing something right” but adds that “[s]ometimes, however, it means you must be doing everything wrong.”
As America’s chief internal security officer, Comey wielded enormous power. That power came not just from the thousands of armed agents at his disposal; it also arose from his extraordinary investigative authority. Furthermore, he enjoyed enormous influence because he was able to make public statements about various probes. That is no small matter as today the mere announcement of an investigation can destroy dreams. Ask Hillary Clinton about her Presidential ambitions.
The power of any FBI director quite obviously comes with great responsibilities to his superiors, the American people, and their elected representatives. What then are we to make of the CNN revelation that last summer Comey acted on “Russian intelligence he knew was fake” in closing the Clinton investigation? And to do so, according to CNN, without informing Congress about the purportedly “fake” material, even in closed session?
Here’s some detail: according to CNN, an email allegedly faked by Russian intelligence “purported to show that then-Attorney General Lynch had been compromised in the Clinton investigation.” The Washington Post characterized the FBI’s handling of the situation this way:
The fear among FBI officials was that then-Attorney General Loretta E. Lynch, an appointee of the Obama administration, who had recently had a private meeting with Bill Clinton, would be caught in a compromised situation if she were the one closing the case and then the allegedly fake document was made public.
Consequently, CNN says, Comey “acted unilaterally last summer to publicly declare the investigation over — without consulting then-Attorney General Loretta Lynch.” Not informing his boss, or Congress? Senator Lindsay Graham assessed the situation this way:
The FBI director knew that the information he relied upon to jump into the 2016 election was fake, that he basically took over the Department of Justice’s job based on a fake email from the Russians. That, to me, is a stunning story. From Congress’s point of view, he never told us it was fake. So he needs to be held accountable.
Was Comey trying to orchestrate what he considered to be the appropriate political result, rather than dispassionately gathering the facts and letting DoJ, Congress, and, ultimately, the American people make their own judgment? Even before the revelation about the fake email, Deputy Attorney General Rod Rosenstein was critical of Comey’s approach. In his May 9th letter (“Restoring Public Confidences in the FBI”) he says:
[T]he FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General. On July 5, however, the Director announced his own conclusions about the nation’s most sensitive criminal investigation, without the authorization of the duly appointed Justice Department leaders.
In addition to this matter, we also have the peculiar episode described by Ben Wittes in his post on Lawfare (“What James Comey Told Me About Donald Trump”). In it, Ben describes how Comey revealed to him things “about his interactions with Trump,” and how he (Ben) became an unnamed source for a New York Times article (“Comey, Unsettled by Trump, Is Said to Have Wanted Him Kept at a Distance”). That story, incidentally, carried a sidebar about whether the President could be charged with obstruction of justice.
Given the ongoing investigation, what are we to make of these conversations by Comey while still FBI Director? Ben insists that his contact with the Times did not come in “any sense at Comey’s request.” He also forcefully says that “[t]here was no leak from Comey, no leak from anyone else at the FBI, and no leak from anyone outside of the bureau either—just conversations between friends, the contents of which one friend [Wittes] is now disclosing.”
But what was Comey’s interpretation of his discussions with Wittes? Did he know he was speaking to someone who might become a source for a major news organization? Did Comey make one of his famous memos about the conversation? (I urge you to read the Times story and Wittes’ post and make your own evaluation.)
Personally, I’m perplexed as to why the FBI director, in the midst of a highly-contentious investigation, would risk doing anything that might raise questions about his impartiality. This is especially so if there was any possibility of a presidential impeachment trial. We have to ask: what other such “conversations between friends” about his “interactions” with the President did Comey have, and how many resulted in source material for the media?
Let me be clear, I wholeheartedly support the various investigations into possible Russian machinations with the election, as well as any improprieties involving the Trump campaign. But I’ve always been mystified as to why Comey’s FBI wasn’t also looking into the contacts that Hillary Clinton said she had with “foreign leaders” who were wanting to endorse her in order to “stop” Trump.
Here’s the question: to what extent do Americans want any “foreign leaders” trying to “stop” a candidate in one of our elections? Who were these leaders, and did they try to do anything else? (Except for the Italian prime minister, Clinton declined to name them.) Shouldn’t the FBI try to get to the bottom of all foreign efforts to influence our elections?
Comey – to my knowledge anyway – is not a 21st century version of J. Edgar Hoover, the legendary FBI chief who many believe exceeded his proper charter. Still, writing about Hoover in 2011, author Kenneth Ackerman made observations that may pertain to anyone who wields the kind of power the FBI Director possesses. After all, as Ackerman rightly points out, “[t]he FBI’s license to intrude into people’s lives gives it a special public trust.”
Ackerman maintains that Hoover’s 48 years as FBI Director was simply too long to serve that end. “Power,” he says, “concentrated in one person [for almost five decades] is a recipe for abuse.” But is the current ten-year term for the FBI Director the right length to avoid a “recipe for abuse”? Taking the opposite perspective, is it too short? Furthermore, should preserving the public trust mandate that the FBI Director enjoy a ten-year tenure during which he can’t be fired by any President, but only subject to removal by the Senate in an impeachment process?
So, really, these questions (and no doubt more) are larger than either Comey or Trump. Let’s dispassionately ask ourselves such questions as: is too much (or too little?) authority concentrated in the hands of the FBI Director? Do we need more checks and balances?
Put another way, let’s consider whether or not the position of the leader of America’s internal security apparatus is designed the right way for our security as well as for our freedoms. In short, are there changes we need to make in the FBI Director’s charter to help preserve the FBI’s public trust?
As we like to say on Lawfire, get the facts and make your own judgment!