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James Comey Wrong About His Former Agency and His Role

James Comey Wrong About His Former Agency and His Role
Ousted FBI director James Comey listens during a hearing before the Senate Select Committee on Intelligence on Capitol Hill June 8, 2017, in Washington, D.C. (Brendan Smialowski/AFP/Getty Images)

By Monday, 16 April 2018 02:59 PM Current | Bio | Archive

This week’s episode of the reality show that the media have made out of the Trump presidency is concerned with the upcoming release of former FBI Director James Comey’s book, “A Higher Loyalty: Truth, Lies, and Leadership.” Mr. Comey sees himself as the lanky, soft-spoken sheriff, the nemesis of the purportedly venal plutocrat who now mysteriously sits in the White House.

Comey affects a touching “Aw, shucks,” “Lordy!” soft-spokenness, and professes to be baffled and curious at the chicanery he claims he has witnessed, not just on the part of the president, but in the behavior of Loretta Lynch, Mrs. Clinton, and others. Mr. Comey’s intense and zealous self-righteousness would be becoming in a televangelist, a polar explorer, or a nuclear physicist. It is less so in a bureaucrat who misunderstands his position.

Thus, the carefully calibrated public projection of Mr. Comey’s has not convinced all. Former U.S. Attorney Joseph diGenova has branded Comey a “Dirty Cop,” and the president, in a couple of admirably un-nuanced tweets, stated that Comey “is a proven LEAKER & LIAR,” that “[v]irtually everyone in Washington thought he [Comey] should be fired for the terrible job he did,” that Comey “leaked CLASSIFIED information, for which he should be prosecuted,” that Comey “lied to Congress under OATH” and that Comey “is a weak and untruthful slime ball who was, as time has proven, a terrible Director of the FBI.” The president then administered his coup de twitter, “[Comey’s] handling of the Crooked Hillary Clinton case, and the events surrounding it, will go down as one of the worst ‘botch jobs’ of history. It was my great honor to fire James Comey!”

The Republican National Committee (RNC) has set up a website, LyinComey.com. Whom should we believe?

True it may be that the president’s tweets contain a bit of exaggeration, but remember journalist Salena Zito’s ever-relevant observation that Mr. Trump’s critics take him literally but not seriously while his admirers take him seriously, but not literally. Mr. Comey did make a “botch” of the Hillary Clinton matter, and this point was underscored by no fewer than seven former attorneys general and deputy attorneys general — both Republicans and Democrats — quoted in the Rod Rosenstein memo of May 9, 2017, that Attorney General Jeff Sessions used as the basis for his recommendation to the president that Comey be fired. Not one such former official defended Comey’s actions. Deputy Attorney General Rosenstein, crisply and concisely, declared in that memo that “the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department.”

Comey demonstrates two fundamental misconceptions about both the FBI and his role as Director of the agency. First, as the name implies, the Federal Bureau of Investigation is an investigative body, it is not supposed to be a prosecutorial entity, nor is it supposed to function as judge and jury in a criminal case. Its role, according to the manner in which the executive branch was supposed to have functioned, in the Hillary Clinton case, was to pass on the results of its investigation of Mrs. Clinton to the prosecutors in the Justice Department, who would then, based on the facts reported to them, decide whether or not to proceed to subject Mrs. Clinton to the criminal process. Instead, Mr. Comey, in a highly questionable interpretation of the relevant statutes, declared that Mrs. Clinton did not come within their coverage (this was a call that the Justice Department prosecutors, not Mr. Comey, were required to make) and shut down what should have been a continuing criminal proceeding against Mrs. Clinton. Mr. Comey, self-righteously, has claimed that the Justice Department, in the person of Loretta Lynch “had a conflict,” but, as Rosenstein pointed out, “There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General.” Comey could have chosen to follow that course, but, instead, wrongly took matters into his own hands.

Mr. Comey’s second error is his belief that the FBI is somehow an agency created to keep the president in check. It is not, and the FBI director is not some sort of independent supervisor of the activities of the executive branch. The agency is simply a part of that branch, and, as such, its officials serve at the pleasure of the president. In his book, Ex-Director Comey purportedly likens the president to a “mob boss” because Mr. Trump demanded the loyalty of his subordinates. But it is President Trump who has, repeatedly, remained faithful to the Constitution, upholding the discretion of Congress, selecting judges who will follow the rule of law and not legislate, and exercising only the appropriate powers of the executive. In dismissing Comey, President Trump acted on the recommendation of nine of the nation’s highest law enforcement officials. It is Comey who has flouted the law and misunderstood the Constitution.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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This week’s episode of the reality show that the media have made out of the Trump presidency is concerned with the upcoming release of former FBI Director James Comey’s book, “A Higher Loyalty: Truth, Lies, and Leadership.”
james comey, fbi, trump, book
Monday, 16 April 2018 02:59 PM
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