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Was the Comey firing legitimate? Time will tell

Dan Farber, professor of law | May 10, 2017

Was the firing of James Comey another Saturday night massacre? No, not really. But there’s enough resemblance between Trump’s action and Nixon’s axing of special prosecutor Archibald Cox during the Watergate investigation to be worrying.

James ComeyUnlike Cox, Comey had clearly engaged in conduct that warranted firing. During the campaign, he blatantly violated Justice Department policies in his investigation. The FBI is not supposed to make decisions about whether to bring a case; that’s up to the Justice Department and a grand jury. And the FBI is not supposed to hold press conferences or release letters detailing suspicions about individuals – the courts, not the press, are supposed to judge the evidence.

Comey chose the worst possible time to violate these rules, in a situation that could not have been more politically sensitive. Piling on further violations, he gave false testimony to Congress just the other day about Huma Abedin’s emails, making himself look better while making her look completely irresponsible. He is said to be a man of personal integrity, but however well intentioned his conduct may have been, it clearly crossed more than one line. Legally, the president doesn’t actually need cause to fire the FBI director, but there was more than enough cause to justify his action in this case.

In that sense, Comey’s firing was unexceptionable. But there are still ample grounds for concern. The basis for firing Comey was clear the day Trump took office. Indeed, Obama’s attorney general would have been amply justified in removing him. So why wait 100-plus days? Certainly, there was no sign earlier that Trump found Comey’s disclosure about Hillary Clinton distasteful. Quite the contrary. And of course, there’s the context. Comey was involved in an investigation of connections between the Russian government and Trump associates. Firing Comey threatens to derail the investigation. It’s a little hard to believe that’s just a coincidence.

Lawyers sometimes say that you never know what a Supreme Court decision means until you see what the court does in the next case. Similarly, we won’t really know the meaning of Comey’s firing until we see Trump’s nominee to replace him. The biggest fear is that the replacement will be someone who lacks the skills or character to conduct a fearless independent investigation. And the replacement might well fear termination if the investigation is pressed too far, based on the Comey precedent.

To quiet these fears, Trump needs a nominee of unimpeachable character and professional standing. He also needs to pledge to allow the investigation to continue unimpeded. If that happens, we’ll look back at Comey’s firing as a step toward restoring the professionalism and reputation of the FBI. If the replacement is weak or politicized, or if Trump blusters about his ability to get rid of pesky investigators, then we’ll have to draw the opposite conclusion. In the meantime, we badly need the guarantee of an independent investigation into Russian influence on the election and potential links to the Trump campaign.

Comments to “Was the Comey firing legitimate? Time will tell

  1. I am not surprised that Mr. Comey was fired. Mr. Comey should have charged Mrs. Clinton.
    See: Gowdy grills Comey over Clinton’s ‘false statements’
    Jul. 07, 2016 – 1:50 – South Carolina Republican questions the FBI director over the Clinton email investigation
    http://video.foxnews.com/v/5026413742001/?#sp=show-clips

    Also, I have thought all along that Russia DID NOT interfere with the election. Can anyone answer my questions?
    – How did the Russians tamper with voting machines? How?
    – How did the Russians tamper with the Electoral College? How?

  2. Trump’s nonstop dishonesty and political incompetence is the elephant in the room.
    Prof Dan Farber’s ivory tower analysis serves only to put lipstick on a pig.

  3. There is a monumentally greater issue at stake than the daily distractions produced by Trump. What is truly at stake is whether the human race shall be able to survive the failures by politicians, both republican and democrat, in Washington today.

    Relative to my lifetime perspective is that my first, and best, vote for POTUS was for Eisenhower who, along with Churchill and FDR, saved our civilization from Hitler and Tojo, one of the greatest achievements for perpetuation of the human race in history.

    Today our civilization is threatened by violence, inequalities and global warming more than any time in history.

    We now have a president who has declared that Putin is one of the greatest leaders today, a man who is as grave a threat to our civilization today as Hitler and Tojo were during WWII.

    Trump has also threatened the safety and equality of women by acts of degradation he bragged about on Bush’s bus.

    But the greatest threat Trump has produced during his first 100 days as president are his attacks against those who are trying to save the human race from increasingly out of control consequences of climate changes we are already experiencing, especially now that we are rocketing past 410 ppm atmospheric CO2.

    You, and all professors and scholars throughout the world, must focus your efforts on overcoming the gravest threat in history.

    • Robert Reich asked a most excellent question yesterday:

      “Are There 22 Patriotic House Republicans?”
      http://robertreich.org/

      Or, to ask it another way, do republican politicians still believe in protecting and defending American Democracy?

  4. Given the situation, Farber says, the person chosen for the position of the director of the FBI should be “a nominee of unimpeachable character and professional standing.”

    What should the nominee’s character and standing be if the situation was different? I wonder.

    Do we really set the bar so low, expect some lesser standard, just because the executive authority in this case happens to be Donald Trump? Why does this guy get so much leeway?

    Farber’s faint show of probity and evenhandedness does little credit to the reputation his blog posts have built here regarding clear-eyed environmental policy.

  5. “It’s a little hard to believe that’s just a coincidence.”

    That’s the understatement of the year. Nobody with two brains cells connected together sincerely believes Trump fired Comey for the reasons you deem legitimate. It’s a total red herring, and you do your audience a great disservice by even pretending otherwise.

    “Trump needs a nominee of unimpeachable character and professional standing.”

    Like who — Rod Rosenstein? I lost count of the credulous legal experts who vouched for his honesty and integrity when he was selected for DAG. Oddly, all those folks are silent about him now that he provided Trump with the flimsy excuse he needed.

    “And the replacement might well fear termination if the investigation is pressed too far, based on the Comey precedent.”

    Right, which means it’s already too late.

    “He also needs to pledge…”

    OK… Trump needs to “pledge”… Because we all know how steadfastly Trump keeps his promises. Seriously, you need to wise up, professor.

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