The Comey affair is shaping up to be a brass knuckle, brazenly partisan showdown that could turn into a Trump administration Armageddon.
The two sides couldn't be more different. The Trump perspective is: you've had a year, there is no smoking gun, let's move on. We've all put up with a dysfunctional FBI Director who tore up the rule book and is more concerned with his gastrointestinal upset than doing his job. On the other hand, the loyal opposition is convinced this is Watergate all over again, and is prepared to fight the war on numerous fronts: ensuring that Comey's replacement won't be a Trump puppet; vigorous investigations by the Senate and House Intelligence Committees; continued aggressive pursuit of the FBI's look into possible collusion with Russia; and last but possibly not least, good old-fashioned litigation.
The lesson of how powerful a well-placed lawsuit can be has not been lost on the Democrats in the first hundred days of the Trump administration. Time and again, Trump's executive regulations have been thwarted by litigation that led to federal judges issuing national injunctions against the travel ban, and more recently, sanctuary city rules.
What's all that have to do with the Comey affair, you ask? After all, the consensus emerged immediately that the FBI Director is an "at-will employee," subject to termination at the discretion of the President. Well, again, Democrats may take a page from the Watergate playbook. After President Nixon's administration fired Special Prosecutor Archibald Cox, that termination was challenged in court, by a congressman. Watergate judge Gerhard Gesell ruled the firing was illegal. Cox refused to try to step back into the job, but his successor, Leon Jaworski, was a burr under Nixon's saddle.
It's true, the court found the termination of a Special Prosecutor required demonstration of cause, but don't be surprised if Democrats take the position that whereas the president has lots of discretion in terminating an at-will employee, there are some things you can't get away with, like obstructing justice. The charge will be that Trump was running scared, that he heard Comey recently wanted more money for the Russian investigation, that Comey's people had recently served subpoenas on Gen. Flynn's subordinates, and so the firing was motivated by a desire to prevent a lawful investigation.
On the other hand, the president can point to the fact the FBI itself confirmed this week that Comey had provided erroneous testimony in his recent statements before a Senate panel about Hillary Clinton's aide Huma Abedin's handling of classified emails. On May 9, the FBI sent a letter to the Senate Judiciary Committee clarifying part of that testimony. Comey had said Abedin forwarded hundreds of thousands of emails to her husband. In fact, only a few chains of emails were involved.
But the way Trump fired Comey didn't do the president any favors. His Attorney General, Jeff Sessions, was supposed to be out of the loop, having recused himself, but he was involved in the process of delivering the Department of Justice message to the president that they recommended Comey's firing. And now, it appears Sessions will be involved in the process of selecting Comey's replacement. Plus, why the abrupt firing? Was it necessary for Comey to learn about his termination when a big screen behind his back during a talk in Los Angeles blared the announcement, leading to him comment that this was a "pretty good" joke?
And the coup de grace was the bizarre insertion by the president in the termination letter of the comment that, I sure "appreciate the fact that you three times assured me I wasn't under investigation." Perhaps the president thought that without that line, people might say, "he fired the director because he was afraid of an investigation." Inserting the language only threw gasoline on the fire.
Another example of cognitive dissonance is Trump's firing of somebody who, let's face it, did him two huge favors last year. The FBI rule is, we don't talk about investigations. But because Comey thought that his own Department of Justice couldn't be trusted to be fair and objective about the case against Hillary Clinton, he felt he had to break the rules and give a lengthy lecture about how guilty Hillary Clinton was - although at the end of the speech, it was, "nothing to see here, folks, return to your homes." Then, the second famous favor by Comey to Trump was the October 28 surprise, the reopening of the investigation in, shall we say, a highly public way, only to be shut down days later, after irreparable damage had been done to the Clinton campaign.
So given the fact that the president is perceived as being focused on one thing, namely, is somebody a friend of mine, it's pretty strange that he would fire this guy.
So, the scene will soon shift to the investigations in the Congressional committees. The goal of Democrats will be to find someone in Trump-world who feels the screws tightening regarding allegations of collusion with Russia, who will flip, and point the finger at bigger fish up the food chain.
But, the fact is, people have been poking around looking for smoking guns for nearly a year, and it hasn't happened. At the end of the day, evidence of a crime is either out there, or it isn't. Until the tip of the iceberg of alleged evidence of collusion can be seen above the surface of the political ocean, the Democrats' frustration will probably continue. It will be difficult to generate public support, much less congressional support, for aggressive investigations or creative litigation, without the American public having something to latch onto, in terms of concrete evidence of collusion.
Royal F. Oakes is a graduate of the University of California, Los Angeles, School of law. Mr. Oakes has extensive experience in insurance, employment and general business law. In addition, Mr. Oakes is a nationally recognized legal analyst for ABC News, and has appeared on and hosted many nationally broadcast radio and TV programs.
Suggested citation: Royal F. Oakes, The Continuing Chronicles of the Comey Confrontation, JURIST - Professional Commentary, May 12, 2017, http://jurist.org/hotline/2017/05/Royal-Oakes-comey-constitutional-confrontation.php.
This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct any questions to him at firstname.lastname@example.org