There’s no good excuse not to appoint a special counsel
President Donald Trump’s firing of FBI Director James Comey is disturbing not for the reasons his administration cited but for those it didn’t. Comey’s disclosures about the bureau’s investigation into Hillary Clinton’s use of a private email server while secretary of state were unprecedented and damaging to the FBI’s reputation. But the timing of the firing, months after the fact and days after Comey reportedly asked for more resources for the FBI’s probe into possible connections between the Trump campaign and the Russian hacking in the lead-up to November’s election — and on the eve of a White House meeting between Trump and the Russian foreign minister to boot — is deeply suspicious. We believed before that the Department of Justice should appoint an independent counsel to lead the investigation. Now there can be no excuse not to.
We don’t disagree with any of the criticism of Comey’s actions Deputy Attorney General Rod J. Rosenstein outlined in his memorandum recommending his firing. There is good reason FBI directors don’t publicly give their opinions on whether charges should or should not be filed in a particular case or notify the public of the status of investigations in general — much less investigations related to a presidential candidate in the weeks before an election. To do so has an incredibly prejudicial effect that is antithetical to our system of justice. We said as much when Comey disclosed new activity in the Clinton email investigation in October, and we stand by it now — though it is worth noting we did not then, nor ever have, called for him to be dismissed as a result of it.
What we would dearly love to read is the other half of the memo Rosenstein surely must have imagined, if not actually committed to paper. The case for reprimanding Comey is strong, but the case against a president replacing the FBI director amid an investigation involving his own campaign is far stronger. It may not rise to the level of Richard Nixon’s Saturday Night Massacre, but it cannot help but be viewed as damaging the autonomy of the FBI. Trump will now have the power to select the person investigating his own aides. The public cannot possibly have any confidence in such an investigation, and even Republican members of Congress who had resisted the idea of an independent investigator are now starting to waver.
Trump has gone into self-congratulatory mode since the firing, tweeting that “Comey lost the confidence of almost everyone in Washington, Republican and Democrat alike. When things calm down, they will be thanking me!” and mocking Democrats who had previously criticized Comey for now expressing outrage at his firing. But for Trump to claim that Comey’s extraordinary disclosures about the Clinton investigation were the reason for his firing is hypocrisy of the highest order. Recall, at the time he praised the director’s “guts” for coming forward with the election-eve disclosures.
Two days before the firing, Trump was on Twitter seeking to downplay the story of the Russia investigation, calling it a “total hoax.” In his brief letter to Comey announcing his dismissal, the president gratuitously included the line, “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation … ” To claim that Trump acted to correct actions he never voiced any objection to but not in relation whatsoever to an investigation he continually tries to bury strains all credulity.
Rosenstein’s memo, well reasoned though it may be, is also a convenient smoke screen for the Trump administration to stymie a potentially damaging investigation. After years of watching Rosenstein up close, we have no doubt that he believes every word of what he wrote. But it is inconceivable that he fails to see the broader context. Attorney General Jeff Sessions has recused himself from the Russia investigation because of his false testimony related to his own connections with the Russian ambassador. That puts Rosenstein in the position to decide whether to appoint a special counsel, and his own reputation depends on it now more than ever.
Any Republican members of Congress who want to salvage what reputation for integrity their party has need to speak up and demand a select committee investigation as well. Nothing less than the public’s confidence in the rule of law is at stake.