The Firing of James Comey and the Threat to the Rule of Law

I recently read Bob Woodward and Carl Bernstein’s excellent book, All the President’s Men, in which they recount their reporting of the Watergate burglary and subsequent cover-up by the Nixon administration. The book is insightful for many reasons, including its portrayal of the drip-drip nature of the scandal. Seemingly each week, a new revelation showed that the scandal was deeper than previously thought, and reached even higher within the White House chain of command. The Nixon administration was portrayed, accurately in my view, as brazen in trying to bury the scandal, but lacking the competence to effectively do so.

Which brings us to James Comey, who President Donald Trump fired this evening as Director of the FBI.

Politico has reported that President Trump had been looking to fire Comey at least for the past week, concerned that the FBI's counterintelligence investigation into possible cooperation between Trump associates and Russia was hanging like a dark cloud above the administration. The president was also reportedly frustrated that Comey would not publicly announce that there is no evidence of collusion between the Trump campaign and Russia. It has also been reported that Trump grew exasperated as he perceived Comey as hogging the limelight.

Director Comey has not been the most popular person in Washington lately. He's been under fire from both Democrats and Republicans in the past year, largely due to his public exoneration of Hillary Clinton following her email investigation, and the surprising re-opening of the email investigation in late October 2016, shortly before the presidential election.

But this bipartisan criticism is simply evidence that Director Comey has done his job in a serious, non-partisan and non-political manner. And this is why his firing by President Trump should be profoundly concerning to anyone who values the rule of law and the separation of powers.

Despite the Pretext, It’s All About Russia

In firing Director Comey, President Trump relied on a memorandum prepared by Deputy Attorney General Rod Rosenstein. The memo analyzed the current state of the FBI and cited “the Director’s handling of the conclusion of the investigation of Secretary Clinton’s emails”, as problematic. White House officials later repeated this argument, stating that the firing was due to Comey's mishandling of the Clinton investigation, which caused Comey and the FBI to lose credibility in the eyes of the American people.

The problem is that this argument flies in the faces of almost everything the administration has previously said about Comey in the context of the Clinton investigation and more broadly.

Both Trump and Attorney General Jeff Sessions had previously praised Comey’s handling of the Clinton email investigation, and Trump expressed confidence in Comey even after his inauguration in January. Trump and his team essentially exalted Comey for re-opening the investigation in late October, and decided to let Comey stay on when the new administration was sworn in. The only thing that changed between January and today is that the Trump administration found out about the Russia investigation and decided to do something about it.

Echos of Watergate

During Watergate, Congress served as a strong bulwark against the White House’s attempts to cover up the scandal. Nixon’s inexplicable recordings of his private conversations helped as well, as the recordings provided vital evidence about the scandal and Nixon's involvement. But Nixon’s notorious Saturday Night Massacre—his firing of Special Prosecutor Archibald Cox and subsequent resignations of the Attorney General and Deputy Attorney General, occurred when the Democratic party had a majority in Congress. Today, the Republican party has control of the legislative branch, so there is greater danger of abuse of executive power.

We Need Congress More than Ever

After the firing of Director Comey, it is even more evident that the independence of the judiciary branch is in danger. The President does not get to decide when to "move on" from criminal investigations, especially not when those investigations involve his associates. That is the role of the judiciary branch, and it is up to the legislative branch to help protect that role. It is therefore incumbent upon members of Congress, especially the more independent minded Republicans who have so far bit their tongue, to demand an FBI director who is truly independent, appoint an independent prosecutor to lead the Russia investigation, and push back on this president’s blatant abuse of power.