Comey Fired – Why It’s Too Late For a Fair Investigation

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In a shock announcement, hours ago it was announced that James Comey was leaving the FBI. It turns out that the director of the agency (and former General Counsel of Bridgewater Associates) was fired while FBI Director James Comey was attending an FBI event in Las Angeles.

John Banzhaf has commentary below

 

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FBI Director James Comey [Photo Credit: Rich Girard, Flickr CC 2.0]

 

With FBI Director James Comey fired as he is leading a counterintelligence investigation to determine whether President Trump and/or his associates may have coordinated with Russia to meddle with the presidential election last year, the Attorney General having recused himself from the investigation because of conflicts of interest, and the acting head of the Justice Department having been appointed by the president already under investigation at the time, there seems little chance that there will be a full and impartial investigation, argues public interest law professor John Banzhaf.

The new head of the FBI will be someone selected and appointed by the person under investigation; someone who has the power to have his appointment confirmed even over the united objections of every Democrat in the Senate, he notes.

The time for those who are now demanding a special prosecutor to have made a formal request to put the process in motion was months ago, says Banzhaf, who played a major role in obtaining a special prosecutor to investigate President Richard Nixon’s involvement in Watergate, and was able to get a court order for another special prosecutor.

He suggests that the need for a completely independent investigator is even stronger than it was in Watergate days. He cites the following.

House Intelligence Chairman Devin Nunes has revealed that members of Donald Trump’s transition team – and perhaps even the President himself – were under surveillance, presumably as part of one or more investigations of wrongdoing. CNN has reported that “the FBI has information that indicates associates of President Donald Trump communicated with suspected Russian operatives to possibly coordinate the release of information damaging to Hillary Clinton’s campaign.”

Moreover, all of the U.S. attorneys, including some apparently involved in the investigation such as New York’s Preet Bharara, who would be overseeing any Trump Tower investigations, have been fired, and will be replaced by Trump’s hand picked replacements.

Now Comey, seemingly the last independent person involved in the investigation, has been abruptly fired.

While there is no longer a statutory scheme for the appointment of an independent counsel, a Justice Department regulation [28 CFR 600.1], which replaced the statute, does require that “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, WILL appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and that investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and that under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.” [emphasis added]

Moreover, there is a very clear precedent for just such an appointment. More than a decade ago, there were allegations that the Bush White House leaked the identity of a CIA operative, Valerie Plame. To avoid even the appearance of a possible conflict of interest, then-Attorney General John Ashcroft recused himself from any involvement, instead leaving decisions up to his then deputy attorney general (until yesterday FBI director), James Comey. Comey, following the clear mandatory language of the regulation, appointed a special counsel to investigate the Plame matter.

The problem, says Banzhaf, is that in March when Members of Congress such as Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, were saying that “the independence of federal prosecutors could not be more important. That’s why many of us have called for the appointment of a special prosecutor,” none of them took the logical step of making a formal request for such an appointment.

“Since existing law seems to mandate such an appointment, the logical first step for those who really want such a special counsel would have been to make a formal legal request. Should that not produce the desired result, those concerned should sue, as I and several others were able to do,” suggests Banzhaf.

Filing a formal legal request puts great pressure on a government official to act, and a denial – or even a refusal to act – can often be litigated, notes Banzhaf, whereas general statements for news programs create little real pressure, and an denial or refusal to act cannot give rise to any kind of law suit.

If Feinstein and others had acted then, when the need was already so clear, the initial appointment decision – or, if necessary, a determination whether to acquiesce to the resulting law suit if the request is denied – would be made by Acting Deputy Attorney General Dana Boente, an appointee of President Barack Obama, rather than by his recent replacement, Rod Rosenstein, who was originally appointed by President George Bush.

Rosenstein, at his hearing, refused to commit to appointing an impartial special counsel, saying that all Justice Department investigations are impartial.

So, just as in many banana republics, a major scandal involving the head of government and his family and cronies is going to be investigated by persons he hand picked when the facts demonstrating the need for an investigation were already well known, says Banzhaf.

If only a formal request for the appointment of a Special Counsel pursuant to 28 CFR 600.1 had been filed at a time when the decision would have been in the hands of someone truly independent, muses the professor.

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