Comey can no longer hide destruction caused at FBI

James Comey once described his position in the Clinton investigation as being the victim of a “500-year flood.” The point of the analogy was that he was unwittingly carried away by events rather than directly causing much of the damage to the FBI. His “500-year flood” just collided with the 500-page report of the Justice Department inspector general (IG) Michael Horowitz. The IG sinks Comey’s narrative with a finding that he “deviated” from Justice Department rules and acted in open insubordination.

Rather than portraying Comey as carried away by his biblical flood, the report finds that he was the destructive force behind the controversy. The import of the report can be summed up in Comeyesque terms as the distinction between flotsam and jetsam. Comey portrayed the broken rules as mere flotsam, or debris that floats away after a shipwreck. The IG report suggests that this was really a case of jetsam, or rules intentionally tossed over the side by Comey to lighten his load. Comey’s jetsam included rules protecting the integrity and professionalism of his agency, as represented by his public comments on the Clinton investigation.

{mosads}The IG report concludes, “While we did not find that these decisions were the result of political bias on Comey’s part, we nevertheless concluded that by departing so clearly and dramatically from FBI and department norms, the decisions negatively impacted the perception of the FBI and the department as fair administrators of justice.”

The report will leave many unsatisfied and undeterred. Comey went from a persona non grata to a patron saint for many Clinton supporters. Comey, who has made millions of dollars with a tell-all book portraying himself as the paragon of “ethical leadership,” continues to maintain that he would take precisely the same actions again.

Ironically, Comey, fired FBI deputy director Andrew McCabe, former FBI agent Peter Strzok and others, by their actions, just made it more difficult for special counsel Robert Mueller to prosecute Trump for obstruction. There is now a comprehensive conclusion by career investigators that Comey violated core agency rules and undermined the integrity of the FBI. In other words, there was ample reason to fire James Comey.

Had Trump fired Comey immediately upon taking office, there would be little question about his conduct warranting such termination. Instead, Trump waited to fire him and proceeded to make damaging statements about how the Russian investigation was on his mind at the time, as well as telling Russian diplomats the day after that the firing took “pressure off” him. Nevertheless, Mueller will have to acknowledge that there were solid, if not overwhelming, grounds to fire Comey.

To use the Comey firing now in an obstruction case, Mueller will have to assume that the firing of an “insubordinate” official was done for the wrong reason. Horowitz faced precisely this same problem in his review and refused to make such assumptions about Comey and others. The IG report found additional emails showing a political bias against Trump and again featuring the relationship of Strzok and former FBI attorney Lisa Page. In one exchange, Page again sought reassurance from Strzok, who was a critical player in the investigations of both Hillary Clinton and Donald Trump, that Trump is “not ever going to become president, right? Right?!” Strzok responded, “No. No he won’t. We’ll stop it.”

The IG noted that some of these shocking emails occurred at that point in October 2016 when the FBI was dragging its feet on the Clinton email investigation and Strzok was a critical player in that investigation. The IG concluded that bias was reflected in that part of the investigation with regard to Strzok and his role. Notably, the IG was in the same position as Mueller: The IG admits that the Strzok-Page emails “potentially indicated or created the appearance that investigative decisions were impacted by bias or improper considerations.” This includes the decision by Strzok to prioritize the Russian investigation over the Clinton investigation. The IG states that “[w]e concluded that we did not have confidence that this decision by Strzok was free from bias.”

However, rather than assume motivations, the IG concluded that it could not “find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative decisions.” Thus, there was bias reflected in the statements of key investigatory figures like Strzok but there were also objective alternative reasons for the actions taken by the FBI. That is precisely the argument of Trump on the Comey firing. While he may have harbored animus toward Comey or made disconcerting statements, the act of firing Comey can be justified on Comey’s own misconduct as opposed to assumptions about his motives.

Many of us who have criticized Comey in the past, including former Republican and Democratic Justice Department officials, have not alleged a political bias. As noted by the IG report, Comey’s actions did not benefit the FBI or Justice Department but, rather, caused untold harm to those institutions. The actions benefited Comey as he tried to lighten his load in heading into a new administration. It was the same motive that led Comey to improperly remove FBI memos and then leak information to the media after he was fired by Trump. It was jetsam thrown overboard intentionally by Comey to save himself, not his agency.

The Horowitz report is characteristically balanced. It finds evidence of political bias among key FBI officials against Trump and criticizes officials in giving the investigation of Trump priority over the investigation of Clinton. However, it could not find conclusive evidence that such political bias was the sole reason for the actions taken in the investigation. The question is whether those supporting the inspector general in reaching such conclusions would support the same approach by the special counsel when the subject is not Comey but Trump.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.