Firing of FBI director evokes history

Tuesday, May 9, 2017 - 20:00 StudyHall.Rocks

President Trump fired FBI Director James Comey May 9.

Editor's Note: In the hours following President Donald Trump's decision yesterday to fire FBI Director James Comey, analysts spoke of parallels between Comey's dismissal and the firing of a special prosecutor during the Watergate scandal.

That case, involving President Richard Nixon, was known as the "Saturday Night Massacre." We first wrote about the Saturday Night Massacre earlier this year, when Trump fired acting U.S. Attorney General Sally Yates. Here is the story, along with an update on the Comey case:

The firing on Jan. 30 of Sally Yates, acting U.S. attorney general, by President Donald Trump, brings to mind another government upheaval more than 40 years ago.
That case involved President Richard Nixon and also featured an attorney general who took a stand and ended up out of a job. But the two cases were different in several ways. Here is a compressed account:

Yates defies Trump: An appointee of President Barack Obama, Yates decided Monday that the justice department would not defend Trump’s executive order restricting immigration from seven countries with Muslim majorities.
In a statement explaining her position, Yates stated, “My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.” She concluded that “for as long as I am acting attorney general, the Department of Justice will not present arguments in defense of the executive order unless or until I become convinced that it is appropriate to do so.”

Trump fires Yates: The White House announced that Yates had been relieved of her duties. Another Obama appointee, Dana Boente, U.S. attorney for the Eastern District of Virginia, was named acting attorney general pending approval of Trump's nominee for the position, Sen. Jeff Sessions, R-Ala.

Four decades earlier: On June 17, 1972, burglars were caught in the Democratic National Committee's offices in the Watergate hotel and office complex. Five men were arrested.

Nov. 7, 1972: Nixon was re-elected in a landslide victory. In the months that followed, top-level presidential appointees were implicated in the scandal.

April 30, 1973: The attorney general was forced to resign. Nixon appointed Elliot L. Richardson to replace him. In a televised announcement, Nixon described Richardson as a man of “unimpeachable integrity and rigorously high principle.”
He added, “ I have given him [Richardson] absolute authority to make all decisions bearing upon the prosecution of the Watergate case and related matters. I have instructed him that if he should consider it appropriate, he has the authority to name a special supervising prosecutor for matters arising out of the case.”

May 18, 1973: Richardson chose Archibald Cox, a friend and Harvard University professor, as special prosecutor. Cox had been solicitor general in the Kennedy and Johnson administrations.
In Cox’s 2004 obituary, The New York Times recounted that Cox “widened his investigation into a number of areas, including reports of suspicious financial dealings among members and former members of the Nixon administration.”

Oct. 20, 1973: In what became known as the Saturday Night Massacre, Nixon ordered Richardson to fire Cox. Richardson resigned instead. William D. Ruckelshaus, the deputy attorney general, also refused to fire Cox and was dismissed, the Times reported. Finally, Robert Bork, solicitor general, fired Cox.

Similarities/differences: Richardson resigned to avoid carrying out an order he considered wrong. Yates was fired after refusing to enforce and defend an executive order she considered wrong.
“At the time you appointed me, you gave me the authority to name a special prosecutor if I should consider it appropriate,” Richardson pointed out in his resignation. “At many points throughout the nomination hearings, I reaffirmed my intention to assure the independence of the special prosecutor, and in my statement of his duties and responsibilities, I specified that he would have ‘full authority' for 'determining whether or not to contest the assertion of executive privilege or any other testimonial privilege.’ And while the special prosecutor can be removed from office for ‘extraordinary improprieties,’ I also pledged that 'the attorney general will not countermand or interfere with the special prosecutor's decisions or actions.
"While I fully respect the reasons that have led you to conclude that the special prosecutor must be discharged, I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done. In the circumstances, therefore, I feel that I have no choice but to resign."
On paper, Nixon carefully worded his acceptance of the resignation. This is what he wrote, according to The American Presidency Project website at the University of California, Santa Barbara.

Dear Elliot:
It is with the deepest regret and with an understanding of the circumstances which brought you to your decision that I accept your resignation.
Sincerely,
Richard Nixon

The two recent cases:

The Yates case was handled differently. A White House statement charged that she had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States,” and that she is “an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”

The Comey case: The context for the Saturday Night Massacre was a high-profile investigation revolving around Nixon's campaign. Similarly and inescapably, there is an ongoing investigation focusing on the 2016 presidential campaign.
This time, investigators are probing Russian interference in the election. During testimony before the House Intelligence Committee in March, Comey said this:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere with the 2016 presidential election. And that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government, and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

    But Comey's firing was also different from the Cox-Nixon incident.
    Comey's professional conduct had been criticized after he held a press briefing in July, during which he spoke of the FBI's investigation into then presidential candidate Hillary Clinton and her use of a private email server during her tenure as U.S. secretary of state. He concluded: "Although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case."
    Then, in late October, Comey sent a letter to congressional leaders notifying them that the FBI had found more emails that could have been relevant to the Clinton case. On Nov. 6 (two days before the election) another letter concluded that the emails had been reviewed and no action was to be taken against Clinton. Nevertheless, Clinton, along with members of her campaign interviewed on television and by other publications, have blamed Comey for Trump's victory.
     Comey's actions were the focus of a memo by Rod J. Rosenstein, deputy attorney general. "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. 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."
     Rosenstein also criticized Comey for his October letter: "Concerning his letter to the Congress on October 28, 2016, the director cast his decision as a choice between whether he would 'speak' about the FBI's decision to investigate the newly discovered email messages or 'conceal' it. 'Conceal' is a loaded term that misstates the issue. 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 non-public information. In that context, silence is not concealment." (See the memo on the BBC website.)
    In his letter firing Comey, Trump explained that his decision was based on the recommendations of Rosenstein and Attorney General Jeff Sessions. But the timing of the decision raised eyebrows, as the ongoing FBI investigation centers on the Russian cyberattack aimed at discrediting Clinton -- and consequently, helping Trump.

Update: On May 11, Trump gave an interview with NBC news in which he said he was going to fire Comey even before the Rosenstein memo.

To know more:

The American Presidency Project: Richard Nixon, statement on the resignation of the attorney general and members of the White House staff.
The BBC: Rod Rosenstein's letter recommending Comey is fired.
C-Span: President Nixon's first speech on Watergate, April 30, 1973.
The Huffington Post: Text of letter by Sally Yates opposing Donald Trump's Muslim ban.
The FBI: Statement by FBI Director James Comey on the investigation of Hillary Clinton, July 5, 2016.
The FBI: Director Comey's letter to Congress dated Oct. 28, 2016.
The FBI: Director Comey's letter to Congress dated Nov. 6, 2016.
NBC News: Trump interview with Lester Holt, Nov. 11, 2017.
The New York Times: Archibald Cox, 92, is dead, helped prosecute Watergate
The New York Times: Archibald Cox appointed prosecutor for Watergate
The Washington Post: Nixon wins landslide victory, Democrats hold Senate, House.
The Washington Post: The Watergate Story -- Timeline.
White House: Statement on the Appointment of Dana Boente as Acting Attorney General

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