Posted by Curt on 8 June, 2017 at 6:26 am. 1 comment.


Andrew C. McCarthy:

It is hard to understand why this news is news at all, but ABC News reported Tuesday evening that former FBI director James Comey will not accuse President Donald Trump of obstructing an FBI investigation. Comey is scheduled to testify before the Senate intelligence committee on Thursday.

Comey is a decorated former prosecutor who served at the highest echelons of the Bush Justice Department before becoming the nation’s top federal cop under President Obama. That is why the news that he will not accuse the president of obstruction should be no news. Though better informed than virtually anyone in the country about what constitutes an obstruction crime, Comey took no action consistent with a belief that he had witnessed one during his February 14 meeting with Trump. He did not resign, and having known him for 30 years, I am quite confident he’d have done just that; he would neither countenance such a thing, nor permit himself to become enmeshed in it. Nor did the then-director report either the commission of a crime or being solicited to participate in a criminal scheme—not to his superiors at the Justice Department, and not down his chain of command at the FBI, as internal regulations and protocols would have required.

Moreover, when later asked, in May 3 congressional testimony, whether he’d ever been directed to stop an investigation for political reasons, rather than law-enforcement-related ones, he said he had not. To be sure, the line of questioning at the Senate hearing specifically related to orders from his Justice Department superiors, not from a president. But Jim Comey would not have sliced it so finely. If he had received such a directive from the White House, which any seasoned law-enforcement official would find more disturbing than an order from Main Justice, he would have said so.

Understand: None of this means Comey believed it was appropriate for President Trump to lobby him on behalf of Michael Flynn, the national security adviser Trump had just fired. Undoubtedly, he found it highly inappropriate. All of us who have had an occasionally overbearing boss have experienced discomfort, even anxiety, when that trait is turned on us.

No one appreciates feeling manipulated.

The president has the constitutional authority to order that an investigation be closed. Under the Constitution, all of the power in the executive branch is vested in a single official—the president of the United States. Every other executive branch officer is a subordinate, an inferior officer who is delegated to exercise the president’s power at the president’s pleasure. The FBI is not a separate branch of government, granted immunity from direction by political superiors. Nor, as important as it has become, is the FBI a necessary agency of government—i.e., there is no provision for it in the Constitution, and the nation managed to survive quite nicely in the nearly century-and-a-half of constitutional governance before the Bureau was created in 1935.

The reality, under our law, is that the president—not the FBI director, not the attorney general—is the chief executive law-enforcement official in the country. When FBI supervisors and United States attorneys exercise executive discretion to shut down investigations and prosecutions—something that happens every day, throughout the country—they are exercising the president’s power, not their own. Obviously, the president can have no less discretion in this realm than his subordinates do.

Thus, as a matter of constitutional law, the president has as much unilateral power to shut down an investigation as he does to issue a pardon to someone who has been convicted after an investigation, or to commute the sentence of a convicted federal prisoner. The exercise of these powers is unreviewable by the courts. If they are heinously abused, the remedy is for Congress to impeach the president, not for the president’s judgment to be disputed in a judicial proceeding.

Comey knows all this. But he also knows that Trump did not want to be seen as the decision maker. The president did not want to use his own indisputable power to shut down any investigation of Flynn. He wanted Comey to decide to shut the investigation down. He wanted the public to perceive that the FBI, the professional investigators, had determined there was no merit in any potential prosecution of Flynn. No doubt, he hoped Comey would arrive at that determination on his own, but the president was not above a nudge in the desired direction.

Sound familiar? It should, because it is what happened in the Hillary Clinton emails probe.

President Obama did not direct the FBI and the Justice Department to shut the investigation down. But he did make it known that he did not want his former secretary-of-state to be prosecuted. The then-president, a Harvard-educated lawyer, asserted for all the world, including his subordinates, to hear: He did not believe Clinton should be indicted for mishandling classified information in the absence of evidence that she intended to harm the United States – notwithstanding that there is no such intent requirement in the relevant criminal statute.

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