Comey is gone, the Rus­sia probe isn’t

The Washington Post Sunday - - SUNDAY OPINION - BY WIL­LIAM BARR Wil­liam Barr was U.S. at­tor­ney gen­eral from 1991 to 1993.

Hav­ing served as both at­tor­ney gen­eral and deputy at­tor­ney gen­eral in the Jus­tice Depart­ment, I had re­spon­si­bil­ity for su­per­vis­ing the FBI, work­ing on vir­tu­ally a daily ba­sis with its se­nior leadership. From that ex­pe­ri­ence I came to un­der­stand how for­tu­nate we are as a na­tion to have in the FBI the finest law-en­force­ment or­ga­ni­za­tion in the world — one that is thor­oughly pro­fes­sional and free of par­ti­san­ship. I of­fer this per­spec­tive on Pres­i­dent Trump’s re­moval of FBI Direc­tor James B. Comey.

Comey is an ex­traor­di­nar­ily gifted man who has con­trib­uted much dur­ing his many years of pub­lic ser­vice. Un­for­tu­nately, be­gin­ning in July, when he an­nounced the out­come of the FBI in­ves­ti­ga­tion into Hil­lary Clin­ton’s use of a pri­vate email server while sec­re­tary of state, he crossed a line that is fun­da­men­tal to the al­lo­ca­tion of au­thor­ity in the Jus­tice Depart­ment.

While the FBI car­ries out in­ves­tiga­tive work, the re­spon­si­bil­ity for su­per­vis­ing, di­rect­ing and ul­ti­mately de­ter­min­ing the res­o­lu­tion of in­ves­ti­ga­tions is solely the prov­ince of the Jus­tice Depart­ment’s prosecutors. With an in­ves­ti­ga­tion as sen­si­tive as the one in­volv­ing Clin­ton, the ul­ti­mate de­ci­sion­mak­ing is re­served to the at­tor­ney gen­eral or, when the at­tor­ney gen­eral is re­cused, the deputy at­tor­ney gen­eral. By uni­lat­er­ally an­nounc­ing his con­clu­sions re­gard­ing how the mat­ter should be re­solved, Comey ar­ro­gated the at­tor­ney gen­eral’s au­thor­ity to him­self.

It is true, as I pointed out in a Post op-ed in Oc­to­ber, that At­tor­ney Gen­eral Loretta E. Lynch, af­ter her tar­mac meet­ing with Bill Clin­ton, had left a vac­uum by nei­ther for­mally re­cus­ing her­self nor ex­er­cis­ing su­per­vi­sion over the case. But the rem­edy for that was for Comey to present his fac­tual find­ings to the deputy at­tor­ney gen­eral, not to ex­er­cise the pros­e­cu­to­rial power him­self on a mat­ter of such grave im­por­tance.

Un­til Comey’s tes­ti­mony last week, I had as­sumed that Lynch had authorized Comey to act uni­lat­er­ally. It is now clear that the depart­ment’s leadership was sand­bagged. I know of no for­mer se­nior Jus­tice Depart­ment of­fi­cial — Demo­crat or Republican — who does not view Comey’s con­duct in July to have been a grave usurpa­tion of au­thor­ity.

Comey’s ba­sic mis­judg­ment boxed him in, com­pelling him to take in­creas­ingly con­tro­ver­sial ac­tions giv­ing the im­pres­sion that the FBI was en­meshed in pol­i­tics. Once Comey staked out a po­si­tion in July, he had no choice on the near-eve of the elec­tion but to re­open the in­ves­ti­ga­tion when new ev­i­dence ma­te­ri­al­ized. Re­gret­tably, how­ever, this per­for­mance made Comey him­self the is­sue, plac­ing him on cen­ter stage in pub­lic po­lit­i­cal dis­course and caus­ing him to lose cred­i­bil­ity on both sides of the aisle. It was widely rec­og­nized that Comey’s job was in jeop­ardy re­gard­less of who won the elec­tion.

It is not sur­pris­ing that Trump would be in­clined to make a fresh start at the bureau and would con­sult with the leadership of the Jus­tice Depart­ment about whether Comey should re­main. Those de­lib­er­a­tions could not be­gin in earnest un­til the new deputy at­tor­ney gen­eral, Rod J. Rosen­stein, to whom Comey would re­port, was con­firmed and in a po­si­tion to as­sess Comey and his per­for­mance. No mat­ter how far along the pres­i­dent was in his own think­ing, Rosen­stein’s as­sess­ment is co­gent and vin­di­cates the pres­i­dent’s de­ci­sion.

Rosen­stein made clear in his mem­o­ran­dum that he was con­cerned not so much with Comey’s past ar­ro­ga­tion of power, as as­ton­ish­ing as it was, but rather with his on­go­ing re­fusal to ac­knowl­edge his er­rors. I do not dis­pute that Comey sin­cerely be­lieves he acted prop­erly in the best in­ter­ests of the coun­try. But at the same time, I think it is quite un­der­stand­able that the ad­min­is­tra­tion would not want an FBI direc­tor who did not rec­og­nize es­tab­lished lim­its on his pow­ers.

It is telling that none of the pres­i­dent’s crit­ics are chal­leng­ing the de­ci­sion on the mer­its. None ar­gue that Comey’s per­for­mance war­ranted keep­ing him on as direc­tor. In­stead, they are at­tack­ing the pres­i­dent’s mo­tives, claim­ing the pres­i­dent acted to neuter the in­ves­ti­ga­tion into Rus­sia’s role in the elec­tion.

The no­tion that the in­tegrity of this in­ves­ti­ga­tion de­pends on Comey’s pres­ence just does not hold wa­ter. Con­trary to the crit­ics’ talk­ing points, Comey was not “in charge” of the in­ves­ti­ga­tion.

In the Jus­tice Depart­ment, re­spon­si­bil­ity for over­see­ing and di­rect­ing in­ves­ti­ga­tions is lodged in the depart­ment’s prosecutors. Be­cause At­tor­ney Gen­eral Jeff Ses­sions has re­cused him­self, the in­ves­ti­ga­tion into Rus­sian in­ter­fer­ence is be­ing su­per­vised by Rosen­stein and Dana Boente, act­ing head of the depart­ment’s Na­tional Se­cu­rity Divi­sion. Both men have long and ex­em­plary ser­vice as ca­reer prosecutors in the depart­ment and were se­lected to hold po­lit­i­cal of­fice as U.S. at­tor­neys by Pres­i­dent Barack Obama.

In short, re­spon­si­bil­ity for the in­tegrity of the Rus­sia in­ves­ti­ga­tion is vested in the hands of two highly re­garded Obama vet­er­ans. Se­nate Democrats were well aware that Rosen­stein would be over­see­ing the Rus­sia in­ves­ti­ga­tion when they over­whelm­ingly joined with Republican sen­a­tors in con­firm­ing him by a 94-to-6 vote.

Fur­ther­more, the day-to-day work in that in­ves­ti­ga­tion was be­ing done not by Comey but by ca­reer prosecutors and FBI agents, whose pro­fes­sion­al­ism and in­tegrity do not de­pend on the iden­tity of the FBI direc­tor. In­deed, as the act­ing direc­tor, Andrew McCabe, just tes­ti­fied, FBI agents work­ing on the in­ves­ti­ga­tion will do a thor­ough and pro­fes­sional job re­gard­less of who is serv­ing as the bureau’s direc­tor.

Ac­cord­ing to news re­ports, the in­ves­ti­ga­tion is in full swing, with the Jus­tice Depart­ment us­ing a grand jury to sub­poena rel­e­vant in­for­ma­tion, in­di­cat­ing a de­gree of thor­ough­ness not ev­i­dent in the in­ves­ti­ga­tion into Clin­ton’s email server. Comey’s re­moval sim­ply has no rel­e­vance to the in­tegrity of the Rus­sian in­ves­ti­ga­tion as it moves ahead.


For­mer FBI direc­tor James B. Comey.

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