It is hard to understand why this news is news at all, but ABC News reported Tuesday evening that former FBI director James Comey will not accuse President Donald Trump of obstructing an FBI investigation. Comey is scheduled to testify before the Senate intelligence committee on Thursday.
Comey is a decorated former prosecutor who served at the highest echelons of the Bush Justice Department before becoming the nation’s top federal cop under President Obama. That is why the news that he will not accuse the president of obstruction should be no news. Though better informed than virtually anyone in the country about what constitutes an obstruction crime, Comey took no action consistent with a belief that he had witnessed one during his February 14 meeting with Trump. He did not resign, and having known him for 30 years, I am quite confident he’d have done just that; he would neither countenance such a thing, nor permit himself to become enmeshed in it. Nor did the then-director report either the commission of a crime or being solicited to participate in a criminal scheme—not to his superiors at the Justice Department, and not down his chain of command at the FBI, as internal regulations and protocols would have required.
Moreover, when later asked, in May 3 congressional testimony, whether he’d ever been directed to stop an investigation for political reasons, rather than law-enforcement-related ones, he said he had not. To be sure, the line of questioning at the Senate hearing specifically related to orders from his Justice Department superiors, not from a president. But Jim Comey would not have sliced it so finely. If he had received such a directive from the White House, which any seasoned law-enforcement official would find more disturbing than an order from Main Justice, he would have said so.
The reality, under our law, is that the president—not the FBI director, not the attorney general—is the chief executive law-enforcement official in the country. When FBI supervisors and United States attorneys exercise executive discretion to shut down investigations and prosecutions—something that happens every day, throughout the country—they are exercising the president’s power, not their own.
Understand: None of this means Comey believed it was appropriate for President Trump to lobby him on behalf of Michael Flynn, the national security adviser Trump had just fired. Undoubtedly, he found it highly inappropriate. All of us who have had an occasionally overbearing boss have experienced discomfort, even anxiety, when that trait is turned on us.
No one appreciates feeling manipulated.
The president has the constitutional authority to order that an investigation be closed. Under the Constitution, all of the power in the executive branch is vested in a single official—the president of the United States. Every other executive branch officer is a subordinate, an inferior officer who is delegated to exercise the president’s power at the president’s pleasure. The FBI is not a separate branch of government, granted immunity from direction by political superiors. Nor, as important as it has become, is the FBI a necessary agency of government—i.e., there is no provision for it in the Constitution, and the nation managed to survive quite nicely in the nearly century-and-a-half of constitutional governance before the Bureau was created in 1935.
The reality, under our law, is that the president—not the FBI director, not the attorney general—is the chief executive law-enforcement official in the country. When FBI supervisors and United States attorneys exercise executive discretion to shut down investigations and prosecutions—something that happens every day, throughout the country—they are exercising the president’s power, not their own. Obviously, the president can have no less discretion in this realm than his subordinates do.
Thus, as a matter of constitutional law, the president has as much unilateral power to shut down an investigation as he does to issue a pardon to someone who has been convicted after an investigation, or to commute the sentence of a convicted federal prisoner. The exercise of these powers is unreviewable by the courts. If they are heinously abused, the remedy is for Congress to impeach the president, not for the president’s judgment to be disputed in a judicial proceeding.
Comey knows all this. But he also knows that Trump did not want to be seen as the decision maker. The president did not want to use his own indisputable power to shut down any investigation of Flynn. He wanted Comey to decide to shut the investigation down. He wanted the public to perceive that the FBI, the professional investigators, had determined there was no merit in any potential prosecution of Flynn. No doubt, he hoped Comey would arrive at that determination on his own, but the president was not above a nudge in the desired direction.
Sound familiar? It should, because it is what happened in the Hillary Clinton emails probe.
Comey had to know this. He also had to know that the Obama Justice Department, headed by Loretta Lynch (who had been elevated to public importance when Mrs. Clinton’s husband, President Clinton, appointed her to a coveted U.S. attorney’s position in New York), was never going to authorize an indictment of Hillary Clinton.
President Obama did not direct the FBI and the Justice Department to shut the investigation down. But he did make it known that he did not want his former secretary-of-state to be prosecuted. The then-president, a Harvard-educated lawyer, asserted for all the world, including his subordinates, to hear: He did not believe Clinton should be indicted for mishandling classified information in the absence of evidence that she intended to harm the United States – notwithstanding that there is no such intent requirement in the relevant criminal statute.
Obama could have ordered the investigation to be closed. But he did not want it to appear that he had put his political thumb on the scales of justice. He wanted it to appear that the FBI had done a thorough investigation at the end of which Mrs. Clinton was cleared. Comey had to know this. He also had to know that the Obama Justice Department, headed by Loretta Lynch (who had been elevated to public importance when Mrs. Clinton’s husband, President Clinton, appointed her to a coveted U.S. attorney’s position in New York), was never going to authorize an indictment of Hillary Clinton.
These forces—Obama and Lynch—had guaranteed the outcome. Yet it was the FBI that was being manipulated into the position of excusing Clinton’s inexcusable conduct. The Bureau’s prestige was being put into the service of her political campaign.
We all know how Comey reacted to that scenario.
The then-director’s recommendation against indicting Mrs. Clinton is overrated—it was not his call to make, and if he had made a different recommendation it would have been rejected by Lynch and Obama. And regardless of the criticism of his legal analysis voiced by me and other commentators, let’s stipulate that Comey truly believes that there was insufficient evidence of criminal intent to charge Clinton. The salient point is that he was not going to allow himself or his Bureau to be portrayed as endorsing Clinton’s cavalier mishandling of top-secret information, her destruction of government documents, and the culture of disregard for national security exhibited by the State Department during her stewardship.
I have not understood why commentators were suggesting that the former director would accuse the man who fired him of committing a crime. He knows President Trump did not commit a crime. He knows, as any experienced prosecutor knows, that putting not-so-subtle pressure on a subordinate does not arise to felony obstruction.
Yes, Mrs. Clinton was not indicted. But Comey made damn sure the country understood that the FBI had done its job, and that it did not approve of the behavior its thorough investigation turned up. He did it by simply describing her inappropriate conduct in just-the-facts-ma’am fashion. Short of having to shut down her campaign, it is hard to see how Clinton could have been more damaged politically if Comey had publicly accused her of committing a crime.
So see, this is not Comey’s first rodeo.
I have not understood why commentators were suggesting that the former director would accuse the man who fired him of committing a crime. He knows President Trump did not commit a crime. He knows, as any experienced prosecutor knows, that putting not-so-subtle pressure on a subordinate does not arise to felony obstruction. But I’m betting that Comey’s objection has never been that the president violated the law. What he objects to is his sense that the FBI was being put in the service of a president’s political desires – i.e., his sense that he and the Bureau were being prodded to do the heavy-lifting for a president who was unwilling to take the political heat for shutting down an investigation of a political ally.
The then-FBI director made life plenty unpleasant for President Obama and Mrs. Clinton when they put him in that position. I expect he will do the same for President Trump . . . without ever accusing him of committing a crime.