Trump is threat­en­ing the idea of in­de­pen­dent fed­eral in­ves­ti­ga­tions

For­mer pros­e­cu­tor on Comey’s ouster

The Washington Post Sunday - - OUTLOOK - McQuade Bar­bara

Law en­force­ment in the United States is sup­posed to be in­de­pen­dent of pol­i­tics. That’s why the fir­ing of FBI Direc­tor James B. Comey is so trou­bling: It threat­ens that bedrock prin­ci­ple of our le­gal sys­tem. And given the cir­cum­stances, it also un­der­scores the need to ap­point a spe­cial pros­e­cu­tor to in­ves­ti­gate Rus­sian in­ter­fer­ence in the 2016 pres­i­den­tial cam­paign and any Rus­sian ties to the Trump ad­min­is­tra­tion.

One of the rea­sons Comey is highly re­garded in law en­force­ment cir­cles is his rep­u­ta­tion for straight-shoot­ing, in­de­pen­dent ac­tion. Peo­ple can dis­agree with his han­dling of the in­ves­ti­ga­tion of Hil­lary Clin­ton’s emails, but Comey was al­ways his own man. Although many sup­port­ers of both can­di­dates were un­happy with his var­i­ous pub­lic state­ments, no one who knows him — as I came to, in my 19-year ca­reer as a fed­eral pros­e­cu­tor — ever doubted that he was act­ing on his best judg­ment and sin­cere be­liefs based on the facts and the law, and not on par­ti­san pol­i­tics.

Long be­fore the FBI be­gan in­ves­ti­gat­ing mat­ters in­volv­ing Clin­ton or Don­ald Trump, we saw Comey’s in­de­pen­dence dur­ing the

Ge­orge W. Bush ad­min­is­tra­tion, when he served as deputy at­tor­ney gen­eral, se­cond in com­mand at the Jus­tice Depart­ment. When At­tor­ney Gen­eral John D. Ashcroft was hos­pi­tal­ized in 2004, Comey re­fused to give White House of­fi­cials au­tho­riza­tion for a sur­veil­lance pro­gram that the Jus­tice Depart­ment had con­cluded was il­le­gal.That led to a dra­matic show­down with White House coun­sel Al­berto Gon­za­les at Ashcroft’s hos­pi­tal bed­side.

Even be­fore that, as a Republican-ap­pointed U.S. at­tor­ney in the South­ern District of New York in the early 2000s, Comey was well known for em­pha­siz­ing the im­por­tance of in­tegrity in the Jus­tice Depart­ment. He fre­quently re­ferred to rep­u­ta­tion as a reser­voir of trust that takes a life­time to fill, but only a mo­ment to spring a leak and drain away. Pres­i­dent Trump seems to think that Comey’s reser­voir has been punc­tured, but Comey’s gutsy con­duct sug­gests that just the op­po­site is true.

Dur­ing my ca­reer as a pros­e­cu­tor, I learned that in­de­pen­dence is es­sen­tial in law en­force­ment. The le­git­i­macy of our jus­tice sys­tem de­pends on pub­lic trust that crim­i­nal in­ves­ti­ga­tions are based on a fair ap­pli­ca­tion of the law, not on po­lit­i­cal agen­das or ide­ol­ogy. Ca­reer prosecutors and in­ves­ti­ga­tors know that pub­lic trust mat­ters, and con­se­quently they zeal­ously safe­guard not only their ac­tual in­de­pen­dence but also the ap­pear­ance of in­de­pen­dence.

The task is no eas­ier when the sub­ject of an in­ves­ti­ga­tion is a mem­ber of the same party as the per­son who ap­pointed you. As a U.S. at­tor­ney ap­pointed by Pres­i­dent Barack Obama, I helped make in­ves­tiga­tive and charg­ing de­ci­sions in­volv­ing pub­lic of­fi­cials from both par­ties. As any­one who has ever coached his own child in sports knows, it can be hard­est to treat fairly those with whom you are pub­licly aligned, be­cause you don’t want to di­min­ish pub­lic trust in your de­ci­sions. The only way to suc­ceed is to set aside re­la­tion­ships and make de­ci­sions based on ob­jec­tive cri­te­ria. As a re­sult, prosecutors and agents in­vest con­sid­er­able time and ef­fort in in­ves­ti­ga­tions in­volv­ing pub­lic of­fi­cials to en­sure both fair treat­ment of the de­fen­dants and pub­lic con­fi­dence that the de­ci­sion to bring or de­cline charges was made for the right rea­sons.

This is even more com­pli­cated in cases that in­volve na­tional se­cu­rity, as the FBI’s probe of Rus­sia’s ac­tiv­i­ties last year does. Prosecutors must bal­ance the in­ter­ests of pub­lic pros­e­cu­tion with pro­tect­ing the sources, meth­ods and trade­craft used in col­lect­ing in­tel­li­gence. Fil­ing charges may bring a con­vic­tion in one case, but it may com­pro­mise hun­dreds of oth­ers. De­ci­sions must be based on the best in­ter­ests of na­tional se­cu­rity, not on po­lit­i­cal mo­tives.

For all these rea­sons, FBI di­rec­tors serve 10-year terms. Know­ing that he will out­last the pres­i­dent who ap­pointed him, and that his term will span two or pos­si­bly three ad­min­is­tra­tions, an FBI direc­tor can act with­out re­gard for par­ti­san pol­i­tics and can be seen by the pub­lic as above the fray. Be­fore Tues­day evening, only one direc­tor in the bureau’s his­tory had ever been dis­missed: Wil­liam Ses­sions, who served from 1987 to 1993 and was fired by Pres­i­dent Bill Clin­ton af­ter a long de­lib­er­a­tion over a Jus­tice Depart­ment au­dit that found that Ses­sions had com­mit­ted eth­i­cal lapses.

Comey re­cently demon­strated why the 10year term is im­por­tant. He showed that he was not afraid to stand up to his boss when he re­futed Trump’s wire­tap­ping al­le­ga­tions in tes­ti­mony be­fore Congress. Peo­ple on both sides of the aisle should be heart­ened by an FBI direc­tor who acts on prin­ci­ple and not par­ti­san­ship. Comey’s fir­ing calls into ques­tion whether those ideals will con­tinue.

The tim­ing only adds to the con­cern that other mo­tives may be at play. If ad­min­is­tra­tion of­fi­cials re­ally thought that Comey’s con­duct last year was in­ap­pro­pri­ate and grounds for ter­mi­na­tion, why not fire him Jan. 20, as soon as Trump took of­fice? Why wait un­til he was in the mid­dle of the Rus­sia in­ves­ti­ga­tion, on the day the press was fo­cused on the White House’s knowl­edge of for­mer na­tional se­cu­rity ad­viser Michael Flynn’s ties to Rus­sia? A new FBI direc­tor will have an up­hill bat­tle in try­ing to con­vince the Amer­i­can peo­ple that he is com­pletely in­de­pen­dent of the pres­i­dent — es­pe­cially now that the pres­i­dent has ac­knowl­edged he said to him­self that the “Rus­sia thing with Trump and Rus­sia is a made up story” when he de­cided to fire Comey.

The only rem­edy for the cri­sis of con­fi­dence that Trump has cre­ated is an in­de­pen­dent pros­e­cu­tor. The law per­mits the ap­point­ment of such a pros­e­cu­tor to avoid real and ap­par­ent con­flicts of in­ter­est when in­ves­ti­gat­ing high­level ex­ec­u­tive branch of­fi­cials. It was last used in the pros­e­cu­tion of I. Lewis “Scooter” Libby, an aide to Vice Pres­i­dent Richard B. Cheney.

But here’s the rub: It is the at­tor­ney gen­eral who de­cides whether to ap­point a spe­cial coun­sel. To date, the Jus­tice Depart­ment has re­sisted calls to name one. At­tor­ney Gen­eral Jeff Ses­sions al­ready has re­cused him­self be­cause of his own con­tacts with Rus­sian of­fi­cials dur­ing the cam­paign and his fail­ure to dis­close them dur­ing his con­fir­ma­tion hear­ing, leav­ing Deputy At­tor­ney Gen­eral Rod J. Rosen­stein in charge of the case. Less than two weeks af­ter tak­ing of­fice, Rosen­stein wrote the memo rec­om­mend­ing Comey’s ter­mi­na­tion. I know Rosen­stein to be a ca­reer pros­e­cu­tor who has served ad­mirably in Republican and Demo­cratic ad­min­is­tra­tions, and I re­main hope­ful that he grasps the sig­nif­i­cance of pub­lic con­fi­dence in our in­sti­tu­tions of gov­ern­ment. If we are to honor the vi­tal in­ter­est of in­de­pen­dence, he should un­der­stand that it is time to ap­point a spe­cial coun­sel in the Rus­sia in­ves­ti­ga­tion.

I have no doubt that the ca­reer FBI agents and prosecutors work­ing on the Rus­sia in­quiry will con­tinue to do so with great in­tegrity. But at some point, some­one at a very high level will have to de­cide whether to file charges. We can only hope that the de­ci­sion will be made by an in­de­pen­dent leader.

A new FBI direc­tor will have an up­hill bat­tle in try­ing to con­vince the Amer­i­can peo­ple that he is com­pletely in­de­pen­dent of the pres­i­dent.

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