THBT Donald Trump was justified in firing FBI Director James Comey

On May 9th 2017 President Donald Trump fired FBI Director James Comey. Comey had been in the position since being appointed by President Obama in 2013. The decision was announced as being based on Comey’s handling of the investigation into Hillary Clinton’s emails [1] The decision was immediately controversial as the FBI was at the time carrying out an investigation into ties members of the Trump Presidential campaign team including former campaign director Paul Manafort and former National Security Advisor Michael Flynn [2]. Comey has been appointed Director by President Obama on 4th September 2013, having previous served as President George W Bush’s Deputy Attorney General.

Director Comey had been subject to increased media attention during the Presidential campaign of 2016. The FBI was entrusted with carrying on the investigation into whether then-Secretary Clinton had violated confidentiality rules by storing potentially classified information on a private email server designed to operate with her personal phone, rather than with the official State Department email servers. Senior members of the government are obliged to an maintain their emails as lasting records of their time in office, whereas Clinton deleted several thousand emails from her private server, inviting suspicion that amongst those deleted may have included many which were classified and should not have been on an insecure server. The use of private servers potentially opened the statement up to increased risk of cyber-attack from foreign hackers and wasn’t compliant with government rules on protecting information. [3]

Director Comey announced that the investigation into Clinton emails had been terminated in an extraordinary Press Conference given at the FBI Headquarters on the 5th of July 2017. He criticised Clinton’s handling over her emails as “extremely careless” but said that “no reasonable prosecutor would bring the case”. This was criticised by both Democrats and Republicans alike; the former saying that it was unreasonable for Comey to criticise Clinton while at the same time concluding there was no criminally actionable wrongdoing, the latter saying it was a politicised decision to call off the investigation and Comey had breached protocols in revealing what his prosecutorial deliberation was, a this is usually passed to the government in secret. [4]

Comey returned to the headlines in October 2016, when only a few weeks before the 2016 election he announced that the FBI was considering re-opening the email investigation into Secretary Clinton due to having discovered some Clinton emails as a result of their investigation into Congressman Anthony Weiner,, who happened to be husband of top Clinton aide Huma Abedin. It ultimately transpired that none of these included the ‘deleted emails’ they were searching for, but by re-igniting the narrative around the scandal a lot of commentators believed it had a decisive effect on the very close 2016 election. [5] Democrats in particular criticised Comey for making the announcement that the investigation might reopen before the emails had been examined to determine if they were new. Comey declared that he felt it was only right to be as public about the potential reopening of the investigation having decided to make the closing of the investigation public.

The firing came soon after Comey had testified before the Senate Judiciary Committee over his decision to announce, during the 2016 Presidential election, that the investigation into Senator Hilary Clinton’s missing emails had been reopened, a decision which may believe had a decisive effect on the close Presidential race. President Trump indicated in his terse dismissal note that he was acting upon a recommendation from Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions. [6]

The Investigation into the connections between the Trump Campaign and Russia was started as a response to allegations contained in a dossier produced by former MI6 agent Christopher Steele which was passed to political opponents of Donald Trump such as Arizona Senator John McCain who passed the dossier on to the FBI to investigate its allegations as well as contact and financial ties Manaford and Flynn have with President Putin’s administration. President Obama and President-Elect Trump were informed that the investigation had been opened and was progressing.

 

[1] ‘FBI chief James Comey fired by Trump’, BBC, 9th May 2017.

[2] ‘Trump Associates’ links with Russia: What We Know so far’, The Guardian, 2nd March 2017

[3] ‘Hilary Clinton emails - what’s it all about’, BBC News,

[4] ‘James Comey Defends Handling of Clinton Email Investigation’, Wall Street Journal, 3rd May 2017

[5] ‘The Comey Letter Probably Cost Clinton the Election’, FiveThirtyEight, 3rd May 2017

[6] ‘Trump’s letter firing FBI Director James Comey’, CNN, 10th May 2017

Title 
The FBI Director serves at the pleasure of the President, so Trump had a prior right to fire him
Point 

The President can fire the FBI director for any reason. It is clear there was limited trust between them which will have made running the department difficult and the President can and should act upon advice from the Attorney General and the Deputy Attorney General when making these kinds of decisions. If there was a mistake here it might have been in keeping Comey on as FBI Director following the election when there was such a cloud of controversy over him. [1] President Clinton removed Director William Sessions from his position as FBI director in 1993.

[1] ‘Trumps Firing of FBI Director Comey has Huge Implications for Investors’, Forbes, 23 May 2017.

Counterpoint 

The FBI director is and should be independent from day to day interference with their office. The 1968 Omnibus Crime Control Act establishes a 10 year tenure for the position precisely to allow them the kind of space from political interference needed to allow them to conduct their business, which includes the investigation of government officials. [1] The President should have overwhelming reasons to dismiss the director, such as the kind of allegations made against former Director Sessions which prompted his removal.

[1] ‘FBI Director: Appointment and Tenure’, Congressional Research Service, 19 February 2014.

Title 
Director Comey was a showboat
Point 

In his conduct former Director Comey has demonstrated a preference for media exposure inappropriate for an FBI Director. Back when he was Deputy Attorney General in 2004 he threatened resignation when administration refused to take his advice over its surveillance programme and testified about the incident before the Judiciary committee in 2007. [1] He has consistently failed, both during the Clinton emails investigation and during the Trump Campaign investigation, to exercise the level of discretion with the media expected of someone in his position. We’re seeing this again in his refusal to testify about his firing in a closed session of the Judiciary Committee but insisting on an open committee hearing. [2] The most egregious example was his decision to make public his recommendation to prosecutors on the Clinton emails case, something which has never happened in the history of the FBI. [3]

[1] ‘FBI Director James Comey’s must-watch testimony from 2007’, Washington Post, 7th July 2016.

[2] ‘Former FBI Director James Comey to testify in Open Session before Senate Intelligence Committee’, The Independent, 20th May

[3] ‘James Comey Defends Handling of Clinton Email Investigation’, Wall Street Journal, 3rd May 2017

Counterpoint 

The 2004 incident concerned the decision of both Comey and his then-boss Attorney General John Ashcroft that the Bush wiretapping programme was illegal. His threat to resign when the administration ignored the issue of legality and passed the law anyway, albeit without the Attorney General’s written assent to it being legal was kept private until a memoir was published in 2007 which is why he was invited before the Senate Judiciary Committee to recount the tale. [1] This isn’t him seeking publicity, but rather him answering a summons. Comey has indicated that his decision to make his recommendation on prosecution public was a response to the public interest in the case and desire to end speculation. An ongoing investigation into a Presidential candidate was also rare in the bureau’s history, it seems reasonable that uncommon practice would occur.

[1] ‘FBI Director James Comey’s must-watch testimony from 2007’, Washington Post, 7th July 2016.

[2] ‘James Comey Defends Handling of Clinton Email Investigation’, Wall Street Journal, 3rd May 2017

Title 
President Trump was acting on advice of officials
Point 

The President indicated that he was acting on the recommendation of the Deputy Attorney General Rod Rosenstein. In Rosenstein’s three page memo dated the 9th of May he makes a number of sound criticisms of Director Comey’s handling of the Hilary Clinton e-mail scandal: That Director Comey was wrong initially to announce the closure of the investigation, as that was a decision for the Attorney General to have made. That it was inconsistent with established good practice, to hold a press conference open the closure of the case criticising the subject of an investigation as “extremely careless” but that “no reasonable prosecutor would bring such a case”. And further wrong to announce the reopening of the case in the letter which many have contributed to Hilary Clinton losing. Rosenstein cited several past Attorneys General who also agreed with this assessment. Many prominent Democrats made similar criticisms of Comey’s conduct when he published the letter and called for President Obama to remove him from his position. [1]

[1] Rosenstein, R ‘Restoring Public Confidence in the FBI’, 9th May 2017

Counterpoint 

Even if all this is correct the time to fire Comey was either when he announced the reopening of the investigation or when Trump assumed office. The fact that President Trump didn’t fire Director Comey then suggests that he was satisfied with his conduct and therefore creates suspicion that the firing wasn’t for the reasons given but to do with the investigation into the interaction between the Trump Campaign team and the Russian government. This is further compounded by the fact that in his May 11th interview with NBC News’ Lester Holt Trump indicated his decision to fire Comey wasn’t based on the recommendation but “I was going to fire, regardless of recommendation” [1] and Rosenstein has revealed to the Senate that he was instructed to write the memo. [2]

[1] ‘Trump: Regardless of Recommendation, I was Going to Fire Comey’, The Atlantic, May 11th 2017.

[2] ‘Senate Inquiries Narrow as Rosenstein Suggests Plan for Fire Comey Predated Memo’, New York Times May 18th 2017.

 

Title 
The decision to fire Comey has eroded trust in the rule of law
Point 

The President as a rule should try to avoid firing senior law enforcement officers. The FBI director has a 10 year tenure under the 1968 Omnibus Crime Control Act for a reason, that the President hiring and firing the director without serious cause serves to make the office more political which means it cannot be trusted to conduct investigations into government officials. Regardless of whether his conduct with the Clinton Email investigation was perfect, the White House should have exercised more caution in dismissing someone who is currently involved in an ongoing investigation into the White House. [1]

[1] ‘FBI Director: Appointment and Tensure’, Congressional Research Service, 19 February 2014.

Counterpoint 

In the long term it is likely more damaging the the office if the person holding it is either not behaving within established precedent of how an FBI Director should behave or if he has a particularly poor relationship with the President. It’s unlikely the President could forge a good working relationship with someone whom his Attorney and Deputy Attorney General have told him isn’t up for the task and who has refused his advice on what his priorities should be. Deputy Attorney Rosenstein’s memo clearly establishes that Comey’s handling of the emails scandal was not in keeping with past bureau practice.

[1] Rosenstein, R ‘Restoring Public Confidence in the FBI’, 9th May 2017

Title 
The decision to fire Comey was taken rashly without due consideration for the effects
Point 

It is becoming increasingly obvious that the White House acted without sufficient care and attention for the integrity of the institution when making the decision to fire him. Director Comey learned about his dismissal initially from television. [1] The memo from Deputy Attorney General Rod Rosenstein was written on the day that Comey was fired and the Trump has himself contradicted the earlier claim that he made the decision to fire him based on the memo in his interview with NBC’s Lester Holt and Rosenstein has revealed in testimony to the Senate that he has instructed to write the memo so the official explanation the Administration attempted to give of the circumstances of the dismissal fell apart within a matter of days. [2] At the same time there would appear to be no clear plan for who will replace Rosenstein as FBI Director, and therefore also no clear plan for what will happen with the FBI Investigation into the Trump Campaign, given that Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein are compromised by their involvement with Comey’s dismissal. [3] This has effectively damaged the integrity of law enforcement within the United States.

[1] ‘James Comey learned about his firing as FBI Director from TV, source says’, Chicago Tribune, 9th May 2017.

[2] ‘Trump: Regardless of Recommendation, I was Going to Fire Comey’, The Atlantic, May 11th 2017.

[3] ‘Why Sessions is in Deep Trouble’, Washington Post, 2nd March 2017

Counterpoint 

It’s often the case that an Administration will offer an initial explanation for a chain of events and have to clarify it further in response to criticism. In this instance President Trump’s explanation that he fired Director Comey in response to Rosenstein’s memo seems to be more exactly phrased as he invited Rosenstein to clarify the reasons that, given how he had handled the Clinton investigation, Comey should be fired. That doesn’t mean it was improper to fire him. The timing seems to be more than anything to do with Comey’s appearance before the Senate Judiciary Committee. The President likely read responses to that, asked the Deputy Attorney General to make a recommendation and used that recommendation as the basis for the dismissal. [1]

[1] ‘Rosenstein stands by memo on firing James Comey’, Guardian, 19th May 2017

 

Point 

It is becoming increasingly clear that the Trump Administration’s intention has little to do with the stated reason for the dismissal - Director Comey’s handling of the Clinton Email Investigation - but instead was due to the FBI’s investigation into the involvement between the Trump Campaign and the Russians. Comey has personal memos which detail President Trump asking him to cease investigating Michael Flynn on the basis that he is “a good guy”. [1] The dismissal comes immediately after Comey asked for more funds with which to expand the scope of the investigation. [2] In the meeting that President Trump conducted with Russian Foreign Minister Sergei Lavrov the day after firing of Comey, Trump told Russian officials he the “great pressure” over the Russian investigation had been “taken off” by dismissing Comey and described Director Comey as a “real nut job”. [3] Whether Trump is culpable for involvement with the Russians during the campaign, if he acted to intentionally derail a federal investigation he is guilty of obstruction of justice, which is obstruction of justice and a crime in its own right.

[1] ‘Donald Trump asked James Comey to shut FBI investigation into Michael Flynn’, The Telegraph, 17th May 2017

[2] ‘Days Before Firing, Comey Asked for More Resources for Russia Inquiry’, New York Times, 10th May 2017

[3] ‘Trump Told Russians that Firing ‘Nut Job’ Comey Eased Pressure from Investigation’, New York Times, 19th May 2017

Counterpoint 

President Trump might not always be the clearest communicator but it seems obvious that someone might feel a pressure relieved when a investigation of them is delayed, but at the same time be only acting on other motives, for example those outlined in Deputy Attorney General Rosenstein’s memo. A special prosecutor has now been appointed to lead the Russia investigation, so if his motive was to derail it he seems to have failed. [1] The remarks made to the Russians might be unfortunate but it would appear Trump had no intention of making them public. The idea that this would meet the standard for obstruction of justice seems pretty absurd on the face of it, where Trump was acting upon a recommendation given by the country’s two senior law enforcement officers). If the Comey Memo does implicate Trump for obstruction of justice it would also implicate Comey for having withheld it.

[1] ‘What the special Counsel Appointment Means’, The Atlantic, 18th May 2017

[2] ‘Why the Comey Memo Won’t be what the Media Hopes

Bibliography 

‘FBI chief James Comey fired by Trump’, BBC, 9th May 2017.

‘Trump Associates’ links with Russia: What We Know so far’, The Guardian, 2nd March 2017

‘Hilary Clinton emails - what’s it all about’, BBC News,

‘James Comey Defends Handling of Clinton Email Investigation’, Wall Street Journal, 3rd May 2017

‘The Comey Letter Probably Cost Clinton the Election’, FiveThirtyEight, 3rd May 2017

‘Trump’s letter firing FBI Director James Comey’, CNN, 10th May 2017

‘Trumps Firing of FBI Director Comey has Huge Implications for Investors’, Forbes, 23 May 2017.

‘FBI Director: Appointment and Tensure’, Congressional Research Service, 19 February 2014.

‘FBI Director James Comey’s must-watch testimony from 2007’, Washington Post, 7th July 2016.

‘Former FBI Director James Comey to testify in Open Session before Senate Intelligence Committee’, The Independent, 20th May

Rosenstein, R ‘Restoring Public Confidence in the FBI’, 9th May 2017

‘Trump: Regardless of Recommendation, I was Going to Fire Comey’, The Atlantic, May 11th 2017.

‘Senate Inquiries Narrow as Rosenstein Suggests Plan for Fire Comey Predated Memo’, New York Times May 18th 2017.

‘James Comey learned about his firing as FBI Director from TV, source says’, Chicago Tribune, 9th May 2017.

‘Why Sessions is in Deep Trouble’, Washington Post, 2nd March 2017

‘Rosenstein stands by memo on firing James Comey’, Guardian, 19th May 2017

‘Donald Trump asked James Comey to shut FBI investigation into Michael Flynn’, The Telegraph, 17th May 2017

‘Days Before Firing, Comey Asked for More Resources for Russia Inquiry’, New York Times, 10th May 2017

‘Trump Told Russians that Firing ‘Nut Job’ Comey Eased Pressure from Investigation’, New York Times, 19th May 2017

‘What the special Counsel Appointment Means’, The Atlantic, 18th May 2017

‘Why the Comey Memo Won’t be what the Media Hopes, Constitution.com, May 15th 2017

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