Richard A. Epstein · Thursday, May 11, 2017, 3:45 pm
The hyperventilation in Washington is unjustified.
The decision of President Donald Trump to fire FBI Director James Comey is generating a fevered, near-maniacal response that is out of proportion to the asserted wrong. There is certainly much grist for the mill, much of it related to the animosity that Trump is said to bear toward Comey, which proves once again that on all matters of state, this president is often his own worst enemy. (I have criticized him in no uncertain terms both before and after the election.) There is of course much to regret in the timing of the decision, and good reason to think it’s a political miscalculation in light of the ferocious response that it has generated.
But political blunders are one thing, and a constitutional crisis is another. Yet in Washington’s fevered environment, Trump’s many critics take evident delight in trying to outdo each other in their denunciations of the president. Thus Vox’s Matthew Yglesias takes the position that although the time for impeachment has not yet arrived, Trump’s decision to fire Comey carries with it (as a headline put it) “a whiff of obstruction of justice,” which is an impeachable offense if proved.
Writing in the New Yorker, Jeffrey Frank argues that Comey’s decision, while not (yet?) an impeachable offense, is “far more problematic and dangerous than the one facing the nation forty-four years ago.” At that time, President Richard Nixon ordered the firing of special prosecutor Archibald Cox, which prompted the resignation of both Elliot Richardson, the attorney general, and William Ruckelshaus, his deputy. Robert Bork was left to discharge that unhappy task, for which he paid a heavy political price 14 years later when he was denied a seat on the Supreme Court.
Not to be outdone, New Yorker columnist John Cassidy treated the firing as “a terrifying attack on the American system of government,” carried out by a man who “acted like a despot” who now has the opportunity to pick his own FBI head, who “will have the authority to close down the investigation.” At the same time, the Democrats, led by Senate Minority Leader Charles Schumer, have insisted in unison on the appointment of a special prosecutor to take over the investigation, even before a permanent FBI director is in place.
There are of course many reasons why one might oppose Trump’s decision to fire Comey, but none of them remotely deserve the hyperbolic responses that Comey’s termination has elicited. There are two sides to every story, and in this case the other side has, at least for the moment, the better of the argument.
Rosenstein’s memo is sound. If anything, it understates the case.
The first point to note is that Comey deserved to be fired, long ago, for the offenses that were set out in the memorandum of May 9, 2017 (subject line: “Restoring Public Confidence in the FBI”), that Rod Rosenstein prepared, which outlined Comey’s breaches of his duties as FBI head. Rosenstein, the newly appointed deputy attorney general, cogently described several significant errors of judgment, mainly having to do with Comey’s public statements about his investigation into Hillary Clinton’s use of a private email server while secretary of state.