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You will have to forgive me for hearing echoes of the 10-year-old US attorney firing scandal in James Comey's abrupt dismissal from the FBI last week.
As one of the nine US attorneys fired for political reasons in 2006 and 2007, I was an unwilling participant in what was, until now, the biggest scandal to shake the Justice Department since the "Saturday Night Massacre" firings during Watergate more than 40 years ago.
The US attorneys episode, which clouded President George W. Bush’s second term, revealed just how explosive it can be to violate norms that insulate criminal investigation and prosecution from politics. Eventually, almost everyone who took part in the decision — and then attempted to cover it up — lost their jobs and reputations. Unfortunately, the Trump administration seems to have forgotten those lessons in firing Comey.
For those who may have forgotten, or are too young to remember, the scandal began when the Bush administration unexpectedly asked for the resignations of nine US attorneys in 2006, a move that erupted into scandal in early 2007. The custom had long been that US attorneys, who are appointed by the president and confirmed by the Senate, submit their resignations only when a new president takes office. That norm exists so administrations aren’t tempted to punish and reward federal attorneys for politically motivated work.
Ideologues in the Bush administration were unhappy with that tradition, and targeted attorneys for various decisions that, in their view, had hurt Republicans. They also hoped to take advantage of a loophole in the Patriot Act that allowed the attorney general, rather than the president, to appoint interim US attorneys, thereby bypassing Senate confirmation.
Once again, top Justice Department officials are forgetting their duty to keep law and politics separate
As we consider the roles played by the current attorney general and his deputy in Comey’s firing, we would do well to remember Alberto Gonzales and Paul McNulty, the hapless attorney general and deputy attorney general during the George W. Bush administration. Both were found by DOJ’s Office of the Inspector General to have "abdicated their responsibility to ensure that prosecutorial decisions would be based on the law, the evidence, and Department policy, not political pressure.”
It was their job to protect the independence of US attorneys. Yet both testified that they could not remember who decided the firings were necessary. Then-Attorney General Gonzales even famously claimed that he had not been present for the decision, only to be contradicted by his own chief of staff’s sworn testimony.
The firings aroused the ire of Congress — and especially the US Senate. Summoned to testify, Gonzales and McNulty insisted that, no, they had not allowed politics into the halls of the Robert F. Kennedy Building, which houses the Department of Justice. That one of the US attorneys had recently convicted and imprisoned a Republican Congress member for political corruption? It naturally had nothing to do with her dismissal. Nor did the fact that another had failed to heed a senior US senator's request to hurry indictments of supposedly corrupt Democrats to help Republicans win elections in his state.
In my own case as the US attorney in Seattle, it surely wasn't my failure to find voter fraud in Washington’s recently concluded governor's election of 2004 that cost me my job. A mere 129 votes had propelled the Democrat into office over a disappointed Republican, angering his supporters. The local FBI and my own prosecution team unanimously determined no evidence of voter fraud existed. (Republican politicians’ interest in bogus voter fraud didn’t begin with Trump.)
Multiple investigations — by Congress, the DOJ, and the press — demonstrated to most Americans the firings of the US attorneys represented an attempt to influence criminal investigations to the benefit of one political party over another. Gonzales, McNulty, and several others in the Justice Department eventually lost their jobs under a barrage of late-night comedy roasts and Sunday morning talk show incredulity.
Thus far, the lessons of prior scandals have eluded both Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. As former US attorneys themselves, both should be aware of their personal obligation to protect the integrity of criminal investigations and defend them from political considerations.
It’s no surprise that President Trump would try to circumvent the rule of law. It is a surprise that top Justice Department officials would help him.
President Trump is a crass politician who seems to have no qualms about prioritizing his political interests above the rule of law. For him, firing Comey and pinning it on Sessions and Rosenstein seems par for the course. But Sessions and Rosenstein should be judged by a different standard. It is their job to stop an overreaching politician, not to aid and abet him.
Unfortunately for the rest of the brave men and women of the Justice Department, their leadership has now associated them with this president’s blatant disregard for American institutions.
Evidence of this administration’s disrespect for the rule of law abounds. The executive orders on immigration are a prime example. The first executive order clearly sought to discriminate based on religion, matching up perfectly with Trump’s previous statements announcing his intent to implement a temporary “total and complete shutdown of Muslims entering the United States.” Even more disturbing than the order itself was the president’s reaction when his ban was temporarily halted by the courts. Rather than simply stating his intention to appeal, he attacked US District Judge James Robart as a “so-called” judge, thereby directly challenging the role of the judiciary as a check on executive power.
When a second, similarly infirm executive order was stayed by US District Judge Derrick Watson, of the District Court of Hawaii, it was Sessions’s turn to attack the courts. Sessions professed himself “really amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and constitutional power.” Pardon us, Mr. Attorney General, but Hawaii is one of those United States to which you refer. As attorney general, it is your sworn duty to respect the constitutional authority of the courts and never, ever undercut their role as guardians against governmental abuse of power.
That criminal investigations and prosecutions must be kept apart from crass politics is a truism familiar to those of us who raised our right hand and swore an oath to support and defend the Constitution. And yes, some of us lost our jobs defending those ideals.
While politics as it is played at the highest levels of government is a rough game, our country has drawn a line when it comes to using the power of federal agents with guns and badges to investigate and arrest political opponents or other innocent persons. That is what the US attorney scandal was all about: the effort to turn law enforcement into an arm of the White House’s political wing. Upholding those norms is what separates us from those pitiable countries in which the political enemies of those in power end up in jail.
Without a doubt, Comey's decision to inform Congress he was reopening the Clinton email investigation only days before the election raised the eyebrows of professional prosecutors — including mine. However, this president obviously doesn't give a damn whether DOJ guidelines were violated on this score and in fact praised Comey at the time, because it benefited him politically.
Sessions and Rosenstein should have refused to provide the president the cover of their memoranda, which he obviously intended all along to serve as justification to fire Comey. The White House’s claim that Comey performed poorly and had lost the trust of the FBI is a lie — the same one used by Alberto Gonzales to justify firing the US attorneys 10 years ago. Gonzales described us as having been weak performers, yet in many cases we had performance evaluations demonstrating the opposite. Both Sessions and Rosenstein know well that Jim Comey was fired by President Trump so he could exercise control over his own investigation into Russian influence; he eliminated one of the few officials with the courage to stand up to him.
And no matter whether one agrees with Comey's approach to the Clinton email investigation, for many of us who served with him in the Department of Justice and the FBI, he stands tall for his integrity and honesty, two qualities now in shorter supply in our government.
As those of us who were fired a decade ago well know, there are some principles more important than holding on to an impressive government job title.
It is not too late for the Department of Justice and its leaders to do the right and ethical thing and stand up to this most feckless of presidents — even if doing so means they, too, might be fired.
John McKay teaches constitutional law and national security law at Seattle University, and chairs the government investigations and crisis management group for the law firm Davis Wright Tremaine. He was the United States attorney for the Western District of Washington from 2001 to 2007.
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