Trump is threatening the idea of independent federal investigations
Former prosecutor on Comey’s ouster
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.