Trump fires Comey, with an assist from MD's former U.S. Attorney Rosenstein

By Edward Ericson Jr.

May 09, 2017 9:01 PM

U.S. Attorney Rod Rosenstein, flanked by police, DEA and FBI officials, announces the take-down of sixBaltimore detectives and a sergeant. (Edward Ericson Jr.)

Citing a memo from former Maryland U.S. Attorney Rod Rosenstein, White House officials announced today that President Donald Trump has fired FBI Director James Comey, effective immediately.

The documents were released around 5:30 p.m., and came out of the blue. Earlier in the day, White House Spokesman Sean Spicer sidestepped a reporter's question about whether Trump still had confidence in Comey.

The FBI is investigating Russian intelligence services' interference in the 2016 presidential election that brought Trump to power to determine the extent of the Trump campaign's collusion with the Russian actors.

The president has denied he is under investigation in this matter and, incredibly, did so in his letter firing Comey.

"While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to lead the Bureau," Trump wrote in a letter on White House stationary.

A letter from Attorney General Jeff Sessions to Trump cites Sessions' commitment to "a high level of discipline," and references a memorandum by Deputy Attorney General Rosenstein, who the senate confirmed to the position on April 25. Rosenstein was tapped to lead the Russia investigation months ago after Sessions recused himself, having been caught lying to the Senate about his own communications with the Russian Ambassador.

Rosenstein's memo, running two-and-a-half pages, is remarkable in its focus. Dated May 9 and titled "Restoring Public Confidence in the FBI," it is all about Comey's mishandling of the investigation into Hillary Clinton's emails, in which she allowed classified documents to pass through unsecure email servers. "Almost everyone agrees that the director made serious mistakes; it is one of the few issues that unites people of disparate perspectives," Rosenstein wrote.

But the mistake was not in Comey's decision not to criminally charge the former Secretary of State during the election campaign. The mistake, Rosenstein wrote, was in talking about it publicly:

"The Director was wrong to usurp the Attorney General's authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution," Rosenstein wrote. "It is not the function of the director to make such an announcement. At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors. The Director now defends his position by saying he believed Attorney General Loretta Lynch had a conflict. But the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General. On July 5, however, the Director announced his own conclusions about the nation’s most sensitive criminal investigation, without the authorization of duly appointed Justice Department leaders."

This tracks with what the New York Times reported a couple weeks ago, explaining that Comey was out of bounds and, in some people's opinion, looking to hog the limelight—not trying to take the heat off Lynch.

"Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation," Rosenstein wrote. "The Director laid out his version of the facts as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do."

Rosenstein ripped into Comey's justifications at a congressional hearing, where he said he only wanted to state what was true: "the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution," and then let the prosecutors prosecute and the judge and/or jury determine the facts.

Comey's explanation for his decision to let the public know the Clinton investigation was reopened in October—that to do otherwise would be to "conceal" it—is, according to Rosenstein, bogus: "When federal agents and prosecutors quietly open a criminal investigation, we are not concealing anything; we are simply following the longstanding policy that we refrain from publicizing nonpublic information. In this context, silence is not concealment."

Rosenstein listed numerous former federal justice department officials who he says agree with him, including Judge Lawrence Silberman, former Attorney General under President Gerald Ford; former Clinton Deputy A.G. Jamie Gorelick; former George W. Bush Deputy A.G. Larry Thomson, and several others, up to Eric Holder, who preceded Lynch in Obama's Justice Department. "Former Deputy Attorneys General Gorelick and Thompson described the unusual events as 'real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation,' that is 'antithetical to the interests of justice.'"

Sen. Richard Blumenthal of Connecticut likened the firing to Richard Nixon's "Saturday Night Massacre" of Justice Department officials at the start of the Watergate scandal. But Nixon set that off by firing the special prosecutor, Archibald Cox. Blumenthal, the former Connecticut attorney general, was one of only four Senators who opposed Rosenstein's nomination as Deputy Attorney General because of Rosenstein's refusal to promise to appoint an independent prosecutor for the Russia probe.

He renewed that request tonight.

Click here for more from Edward Ericson Jr. or email Edward at eericson@citypaper.com

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