Comey's Boss Makes Strong Case for his Firing

In his "Memorandum to the Attorney General" recommending the dismissal of FBI director James Comey, deputy attorney general Rod Rosenstein, Comey's immediate superior, begins by setting out the damage Comey has done to the FBI:

"Over the past year, however, the FBI's reputation and credibility have suffered substantial damage, and it has affected the entire Department of Justice.”

Rosenstein then writes, "I cannot defend the Director's handling of the conclusion of the investigation of Secretary Clinton's emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken."

Rosenstein then set out his principal charge of misconduct.

"The director 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."

Rosenstein then points out that Comey compounded his error.

"The Director [then] ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation."

Rosenstein condemns the specifics of that press conference.

"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.

"The goal of a federal criminal investigation is not to announce our thoughts at a press conference.

Rosenstein then explained the line between the FBI's duties, and prosecutorial duties.

"The goal [of the FBI] 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."

Rosenstein rejects Comey's claim that his failure to hold the press conference would have been tantamount to concealment.

"When federal agents and prosecutors quietly open [sic:close?] a criminal investigation, we are not concealing anything; we are simply following the longstanding policy that we refrain from publicizing non-public information. In that context, silence is not concealment.”

Rosenstein said that judgment is consistent with the views of former attorneys general and deputy attorneys general -- from different eras and both political parties.


Judge Laurence Silberman, deputy attorney general under President Ford: "it is not the [FBI's] responsibility to opine on whether a matter should be prosecuted."

According to Silberman, Comey's "Performance was so inappropriate for an FBI director that [he] doubt[s] the bureau will ever completely recover."

Jamie Gorelick, deputy attorney general under President George W. Bush, opines that the director had eschewed FBI traditions, and "chose personally to restrike the balance between transparency and fairness."

Both Silberman and Gorelick concluded that Comey had violated his duty to "preserve, protect and defend" the traditions of the Department and the FBI.

Former Attorney General Michael Mukasey under President George W. Bush, observed the director "stepped way outside his job in disclosing the recommendation in that fashion" because the FBI

director "doesn't make that decision."

Eric Holder, President Clinton's deputy attorneys general and President Obama's attorney general, stated Comey's decision "was incorrect. It violated long-standing Justice Department policies and traditions. And it ran counter to guidance that I put in place four years ago laying out the proper way to conduct investigations during an election season."

Holder concluded that Comey "broke with these fundamental principles ... negatively affected public trust in both the Justice Department and the FBI."

Rosenstein concludes, "The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them."

"Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions."

Rosenstein appointment as deputy AG was confirmed by a nonpartisan 94-6 Senate vote. Sen. Charles Schumer said, “He had developed a reputation for integrity.”

Posted: QCOline.com May 17, 2017
Copyright 2017, John Donald O'Shea