FBI Director James Comey

Rod Rosenstein Pulls a Comey

By Daphna Renan, David Pozen
Thursday, May 11, 2017, 11:14 AM

President Trump’s firing of FBI Director James Comey is startling and deeply unsettling. Of the many reasons why it is so troubling, we want to highlight one that has received less attention. The process by which Comey was fired appears to raise a version of the same professional concerns that the firing supposedly responds to: a breach of longstanding norms that have developed to protect the integrity, independence, and rule of law values of the Justice Department.

Comey’s conduct in the Clinton email matter is currently being probed by the Justice Department’s Inspector General. The Inspector General is charged with detecting and deterring, among other things, misconduct by DOJ personnel. That charge is ordinarily carried out through a rigorous review of the governing legal and policy framework, a thorough investigation that seeks to unearth the relevant facts, and a conscientious application of that framework to those facts. The Inspector General’s method is designed to afford some institutional insulation from political pressure, and some procedural protections for the individuals involved.

Given the obvious conflicts posed by a President whose advisors and associates are under investigation by the FBI for colluding with Russia in his election, an Attorney General who has had to recuse himself from that investigation, and both a President and an Attorney General who are on the record celebrating Comey’s disclosures relating to the Clinton emails, it was all the more important that the Inspector General get to apply its distinctive process to l’affaire Comey.

Yet this is the process that Deputy Attorney General (DAG) Rod Rosenstein effectively bypassed in a conclusory and rushed-out memorandum for the Attorney General—a memorandum that, as Benjamin Wittes and Susan Hennessey have noted, reads like an op-ed and that, as Bob Bauer observes, raises more questions than it answers. Instead of a sober, carefully substantiated, and authoritative assessment of the FBI Director’s conduct, we are presented with a string of quotations, plucked out of context and clipped together for rhetorical effect.

Comey, according to Rosenstein’s memorandum, “ignored” “longstanding principle[s]” and “well-established process[es]” of the Justice Department. He departed from the Department’s “‘widely-respected, non-partisan traditions,’” and he “laid out his version of the facts for the news media as if it were a closing argument.”

The irony is that in leveling such charges in such a document, Rosenstein was performing his own criticisms. He ignored the Inspector General process and the principles of administrative fairness, independence, and truth-seeking it is meant to embody. And in a departure from the Department’s traditions, he laid out his version of the case against Comey for public consumption as if it were a closing argument.

To be clear, we are not suggesting that the President was legally obligated to await the Inspector General’s findings before deciding to fire the FBI Director, nor do we mean to deny that the President put Rosenstein in a difficult position. But the extraordinary circumstances under which Rosenstein was asked to opine on Comey only heightened the need for a careful analysis of the sort Paul Rosenzweig outlines in his post this morning, developed through an established, credible process.

The result of all this norm-flouting, we fear, will be not only an undermining of the effort to get to the bottom of Russian interference in the presidential race, but also an undermining of the Justice Department’s Office of the Inspector General. This Office has played a crucial role policing abuse and misconduct across administrations, from improperly politicized hiring at the Civil Rights Division to the mistreatment of detainees in the aftermath of 9/11 to the infamous “Operation Fast and Furious.” Actions that serve to marginalize the Office are cause for serious concern.

Rosenstein may have “pulled a Comey” in an additional respect: by being obtuse to the broader social and political context in which he is operating.* While we greatly respect Comey’s career as a public servant and assume he acted with honorable intentions, just as we assume of Rosenstein, we share the view of many that Comey failed—disastrously—to appreciate how his public statements could influence the election. Similarly, it seems that Rosenstein may have failed to appreciate how his memorandum could be used as a pretext to stymie a vital ongoing investigation.

Each may have had valid critiques—Comey of Secretary Clinton, and Rosenstein of Comey. But that alone doesn’t justify the decision to air them in such an unconventional, and potentially consequential, manner. Both Comey and Rosenstein appear to have put a blinkered version of prosecutorial probity ahead of a more realistic, institutionally grounded, and situationally aware style of judgment that keeps the Department’s long-term interests as well as the public good firmly in mind.

* Thanks to Richard Briffault for suggesting this point in conversation.