Opinion, Berkeley Blogs

Was the Comey firing legitimate? Time will tell

By Dan Farber

Was the firing of James Comey another Saturday night massacre? No, not really. But there’s enough resemblance between Trump’s action and Nixon’s axing of special prosecutor Archibald Cox during the Watergate investigation to be worrying.

James Comey Unlike Cox, Comey had clearly engaged in conduct that warranted firing. During the campaign, he blatantly violated Justice Department policies in his investigation. The FBI is not supposed to make decisions about whether to bring a case; that’s up to the Justice Department and a grand jury. And the FBI is not supposed to hold press conferences or release letters detailing suspicions about individuals – the courts, not the press, are supposed to judge the evidence.

Comey chose the worst possible time to violate these rules, in a situation that could not have been more politically sensitive. Piling on further violations, he gave false testimony to Congress just the other day about Huma Abedin’s emails, making himself look better while making her look completely irresponsible. He is said to be a man of personal integrity, but however well intentioned his conduct may have been, it clearly crossed more than one line. Legally, the president doesn’t actually need cause to fire the FBI director, but there was more than enough cause to justify his action in this case.

In that sense, Comey’s firing was unexceptionable. But there are still ample grounds for concern. The basis for firing Comey was clear the day Trump took office. Indeed, Obama’s attorney general would have been amply justified in removing him. So why wait 100-plus days? Certainly, there was no sign earlier that Trump found Comey’s disclosure about Hillary Clinton distasteful. Quite the contrary. And of course, there’s the context. Comey was involved in an investigation of connections between the Russian government and Trump associates. Firing Comey threatens to derail the investigation. It’s a little hard to believe that’s just a coincidence.

Lawyers sometimes say that you never know what a Supreme Court decision means until you see what the court does in the next case. Similarly, we won’t really know the meaning of Comey’s firing until we see Trump’s nominee to replace him. The biggest fear is that the replacement will be someone who lacks the skills or character to conduct a fearless independent investigation. And the replacement might well fear termination if the investigation is pressed too far, based on the Comey precedent.

To quiet these fears, Trump needs a nominee of unimpeachable character and professional standing. He also needs to pledge to allow the investigation to continue unimpeded. If that happens, we’ll look back at Comey’s firing as a step toward restoring the professionalism and reputation of the FBI. If the replacement is weak or politicized, or if Trump blusters about his ability to get rid of pesky investigators, then we’ll have to draw the opposite conclusion. In the meantime, we badly need the guarantee of an independent investigation into Russian influence on the election and potential links to the Trump campaign.