The Many Upsides of Comey’s Termination

President Trump’s decision to fire FBI Director James Comey has sparked a massive political backlash, and the White House has scrambled to come up with several different narratives to explain the decision.

Given this reaction, one might assume that the Comey termination was an extremely harmful and unjust decision–even by the standards of the Trump Administration. However, a more sober analysis of the situation suggests nothing could be further from the truth. In fact, Comey’s firing should offer something for almost everyone to like. Let’s go through it.

Comey Deserved to Be Fired

First things first. After his handling of the Clinton email probe in 2016, James Comey was one of the most eminently fireable people in the Executive Branch.* And there are many different reasons one might agree with this statement, regardless of one’s partisan affiliation.

Volunteering Information on a Pending Investigation

One problem with Comey’s conduct was the infamous letter he sent to Congress a week before the election, informing them that the FBI may have cause to reopen the investigation into Clinton based on an unrelated investigation into Anthony Weiner. This was a breach of the FBI’s general policy not to comment on pending investigations–a policy exists for a very good reason.

Announcing that someone is being investigated by the FBI casts suspicion on them and harms their reputation. If the investigation subsequently turns up empty-handed, then an innocent person had their name sullied for no legitimate reason. Even if the FBI issues a follow-up statement, as they did in Clinton’s case after this letter, noting that no relevant information was found and the investigation was fruitless, this does not undo the initial harm. Invariably, the initial accusation will draw more attention than the discovery that, in fact, there was no story in the first place.

As a brief tangent, this is the same phenomenon that occurs in the news media when they run a sensational, belligerent story, only to have it roundly debunked in a few days’ time. In some cases, the initial story will prove so obviously erroneous that the Times or the Post will actually issue a correction or editor’s note to walk the story back to reality. But that only occurs after the original bogus story has been read and shared thousands of times. Not surprisingly, the initial accusation makes for a much more interesting read than the realistic correction.

Back to Comey and Clinton, there can be no suitable justification for commenting on the pending investigation just before the election. That breach of protocol certainly offers another reason to support the FBI getting new leadership. Indeed, it is also one of the reasons cited by Deputy US Attorney General Rod Rosenstein in his memorandum that implicitly called for the firing of James Comey.

Attacking the Rule of Law

For people that still believe in the rule of law–the idea that laws should be applied equally to everyone, regardless of wealth, political connections, etc.–Comey failed in two important respects. First, he failed to recommend charges against Secretary Clinton despite evidence–which he himself acknowledged–that she did violate the relevant laws and regulations. While this outcome was disappointing, it was also par for the course. With the exception of whistleblowers, the government rarely prosecutes its own for wrongdoing.

But Comey’s offense against the rule of law was not limited to the fact that he did not recommend charges. In his extraordinary explanation for letting Clinton off, Comey’s primary argument was not that Clinton was innocent or that the evidence was insufficient. Comey made it quite clear that all the normal elements needed to prosecute were present in this case (albeit, not for a terribly severe crime). Here’s what he said at the time (emphasis added):

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

In other words, Comey said that evidence exists that the law was broken, and in similar circumstances, a different person who committed these actions would be subject to some type of sanctions. But in the case of the former secretary of state, no “reasonable prosecutor” would bring the case. It’s difficult to imagine a more explicit repudiation of the rule of law. He might as well have said, this person is not being prosecuted because they are a high-level official.

On the one hand, this level of honesty was refreshing I suppose. But it also sets a bad precedent when the nation’s top law enforcement official rejects a foundational principle of our justice system.

Overstepping the Role of the FBI

Though minor by comparison, another misstep by Comey was presenting such a detailed briefing to the public on the Clinton probe in the first place. This was another issue raised in Rosenstein’s memo on the conduct of the now-former FBI Director. Rosenstein makes the case well (emphasis added):

The director [Comey] was wrong to usurp the Attorney General’s authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution. It is not the function of the Director to make such an announcement. At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors. The Director now defends his decision by asserting that he believed attorney General Loretta Lynch had a conflict. But the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General. On July 5, however, the Director announced his own conclusions about the nation’s most sensitive criminal investigation, without the authorization of duly appointed Justice Department leaders.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then – if prosecution is warranted – let the judge and jury determine the facts.

In short, the July press conference was inappropriate for multiple reasons. And while, based on my own analysis, I think there is a compelling case that Clinton should have indeed been prosecuted, Rosenstein makes an excellent point here. Given that the FBI decided the case was not worth pursuing, it clearly is not correct for Comey to defame the subject of the investigation, Clinton, anyway.

Putting it all together, it’s abundantly clear that Comey made some serious mistakes handling the highest profile investigation of 2016. Notwithstanding anything else he’s overseen at the FBI, this should be enough to justify a change in leadership.

Giving Independence and Credibility to the Trump-Russia Probe

Another reason to support the Comey termination is that it gives the chance to enhance the credibility and independence of the Russian probe.

This may sound strange at first, since two of the popular theories for why Trump fired Comey is that Comey had recently requested more resources for the Russia investigation or that he was “getting too close” to the truth. How would firing such an individual actually help that investigation?

Well, the problem with Comey investigating Trump is that so many Democrats see Comey as the reason Trump got elected. And since Comey’s actions were highly unusual, it’s not hard to understand why Democrats might assume Comey was in Trump’s camp the whole time.

Whether that’s actually true or not does not matter. What matters is that a significant portion of the American people and American politicians view Comey through that lens.

This, in turn, has major ramifications for the credibility of the Trump-Russia investigation. If the FBI found no evidence of wrongdoing while under Comey’s leadership, it’s a virtual certainty that many Democrats would write it off as just another partisan outcome–and the Trump-Russia story would live to fight another day.

However, if that same outcome is produced under an FBI Director that the Democrats actually approve of, there’s a chance it might finally put that story to rest.

Alternatively, the firing of Comey has sparked new calls for a special prosecutor to perform the Russia investigation instead. Provided Democrats and Republicans both signed off anew on such a special prosecutor, that would similarly enhance the credibility of the investigation.

Personally, I think it’s unlikely that Comey was directly influencing the scope or direction of the Russia probe to help or hurt Trump. I’m also of the opinion that the Trump-Russia story is probably much ado about nothing.

That said, if US politics is ever to return to something like normal, the investigation needs to be carried out, and it needs to be led by someone who has respect and credibility from both sides. That way, there is a chance the outcome of the investigation will be taken seriously–either to justify charges against the Trump Administration if warranted or just to finally move on to a more useful criticism of the Trump Administration.

This outcome was extremely unlikely under Comey. Now, it is at least a possibility.

Derailing the Trump Train

Another benefit of Trump’s decision to fire Comey is that he’ll be stuck dealing with fallout from this controversy for at least the next couple weeks. That should make it more difficult for Congress or the President to achieve anything of substance during that time. Since many of Trump’s domestic and foreign policy plans fall somewhere between useless and harmful, it’s a positive development to see another obstacle in the path.

From a libertarian perspective, the exception to this general observation is that this controversy will also delay Trump’s efforts to reduce taxes on everyone and cut regulations on the finance industry. The details on such policies are still not finalized, but the most recent information from the Trump Administration suggests that their reform plans in these areas would reduce the tax and regulatory burden on the American people. In theory, they are the sort of things libertarians would want to see enacted.

The problem is that the US economy is very late in the business cycle, and several trends suggest a recession should occur in the near future. This possibility creates severe political downsides for enacting positive economic reforms before the next crash.

Even today, you can still hear people (ahem, Hillary Clinton) asserting that the Bush-era tax cuts helped cause the Great Recession. Never mind that there is no economic basis for this claim, it has somehow become part of the accepted wisdom anyway. The other part of the Great Recession story is that it was caused by government deregulation–specifically the repeal of Glass-Steagall. This claim is also belied by the actual history, but nearly everyone accepts it as true. And since the problem was misdiagnosed, the cure for the Great Recession was a draconian expansion of financial regulation that we’re stuck with today.

Of course, it may be inevitable that the next recession will also be blamed on irrelevant policies instead of the primary causes. Still, it’d probably be best if Trump’s few useful economic reforms wait until after the next recession is well underway–otherwise, they risk becoming the scapegoats.

It Does Not Matter Why Trump Fired Him

In those rare cases when the right thing happens in US politics, it almost never happens for the right reasons. For example, when Democratic politicians (correctly) came out against Trump’s travel ban, it was plainly not because they suddenly cared about the well-being of Yemenis affected by it. Instead, they saw an opportunity to create a backlash against Trump and, largely by happenstance, ended up on the right side of the issue.**

So it is with the Comey termination. We may never really know what caused Trump to fire Comey. Perhaps Comey was getting too close to the truth, or perhaps he made a poor joke about The Apprentice. But even without knowing why the decision was made, we can still make a reasonable decision about whether, on balance, it is a good thing.

Based on the points listed above, it clearly appears to be a positive development.

*To be fair, this is partly due to the fact that Comey is one of the few executive holdovers from the Obama Administration, and Trump’s appointees haven’t had nearly as much time to commit fireable offenses of their own. We can rest assured that they are rapidly building their portfolio.

**Of course, there are some laudable exceptions here. For instance, Democratic Senator Chris Murphy was relatively good on Yemen (opposing Saudi arms sales) and also opposed Trump’s travel ban.

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