Wasn’t Hillary Clinton going to fire Comey?

This is the kind of observation that makes some people flap their hands and dismiss ‘What-ifs’, but if Hillary Clinton had been elected to the White House, wasn’t she going to fire the FBI’s James B. Comey?

Comey’s July 5, 2016, press conference was criticized across the political spectrum. Comey announced that Clinton would not be prosecuted for her private email server–but he also castigated her “extremely careless” handling of classified information, informed the public that there were indeed some top secret emails on the server, and said that none of them should have been kept on an unclassified system.

Comey, Clinton in 2016

Valid points, as far as they went, but criticism has continued from then to now.

No reason Deputy Attorney General Rod Rosenstein should be special, or left out. The July 5 presentation forms part of Rosenstein’s reason for recommending that Comey be fired. Read the Rosenstein memo here, helpfully published in full by the British Independent.

Ironies abound. Comey’s head was on the chopping block if Clinton got into the White House. That might or might not be a good thing, depending on your judgment of Comey’s over-all track record. The point here is that there has been little comment on this in reaction to Comey’s firing. In fact, there was little comment on it amidst all the media motive-hunting about Comey’s remarks eleven days before the 2016 election. The question was not raised with then-candidate Clinton then: if elected, do you plan to keep Comey on? At the time, most pundits were too busy vilifying Comey even to urge that she fire him. The gap is a little odder when you recall that they were all convinced that Clinton was indeed going to be in the White House. Did they deliberately not raise a question because they thought it might cost her voters? Or did it genuinely not occur to them?

The follow-up question for Clinton: with Comey gone, whom would she choose for FBI director? I can’t remember the speculation or even remember the question being discussed. (Admittedly, MSNBC was so insufferable–We’ve got the whip hand now!–that I had tuned out by then.) Speaking of motive-hunting, I can’t remember whether Rosenstein was considered a candidate.

But that kind of speculation is counter-productive right now. Amidst a media snowstorm blanketing Comey’s firing with the ‘Russia investigation’, what I’m noticing is that Rosenstein’s memo is surprisingly well written:

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. It is not the function of the Director to make such an announcement. At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors.

The explanation of FBI protocol, i.e. U. S. law, here does not sound like just smokescreen, pretext for firing Comey over ‘Russia’:

The Director now defends his decision by asserting that he believed Attorney General Loretta had a conflict. But the 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 duly appointed Justice Department leaders.

Not to pile on Jim Comey at the moment, but I never thought the Attorney General had a conflict, or at least not one that necessitated Comey’s taking the pulpit. Every U.S. Attorney General is a political appointee. All of them, going back to Edmund Randolph, have landed in situations of political delicacy at least equivalent to Loretta Lynch’s.

And as Rosenstein’s memo points out, when an official has to recuse himself/herself, someone can fill in. Often that would be the next in command, a deputy–not Rosenstein, who was appointed to his current position in January–but Sally Yates.

I have no idea whether Yates would have made the kind of announcement Comey made in July 2016. If she had announced that the email investigation was ended, presumably she would have worded the message differently. When Comey took the pulpit on July 5, the effect was to pre-empt Yates at least as much as Lynch.

The memo seems to raise a question whether the email investigation would have ended then, had Comey chosen differently:

The current FBI Director is an articulate and persuasive speaker about leadership and the immutable principles of the Department of Justice. He deserves our appreciation for his public service. As you and I have discussed, however, I cannot defend the Director’s handling of the conclusion of the investigation of Secretary Clinton’s emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.

This point has not gone entirely unnoticed. Almost, but not quite.

 

 

 

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