Trump can restore trust after firing Comey — or lose it completely
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President TrumpDonald John TrumpFacebook releases audit on conservative bias claims Harry Reid: 'Decriminalizing border crossings is not something that should be at the top of the list' Recessions happen when presidents overlook key problems MORE’s decision to fire James ComeyJames Brien Comey3 real problems Republicans need to address to win in 2020 Barr predicts progressive prosecutors will lead to 'more crime, more victims' James Comey shows our criminal justice system works as intended MORE, on the recommendation of the attorney general and the deputy attorney general, raises four distinct questions. The issue is not as black and white as some partisan Democrats, and even some Republicans, seem to believe.

The first question Trump faced is whether James Comey should have continued on as director of the FBI. Although reasonable people can disagree about this, there is a widespread consensus among both Democrats and Republicans that Comey discredited the office and his own reputation by the public statements he made in the run-up to the 2016 presidential election. At that time, I called for him to resign.

He had become too controversial and too much of a lightning rod. Many Americans believe that he had influenced the outcome of the presidential election. Although no one will ever know for certain what impact his statement had on the election, the perception that he had acted improperly and may have caused a shift among some voters made him the wrong man for this important job. 

My own view is that James Comey, whom I have met and for whom I had great respect, disqualified himself from continuing to serve in the sensitive role as FBI director.

The second question is whether it was appropriate for the president of the United States to fire Comey at a time when Comey was leading an investigation into people close to the president, some of whom still serve in positions of high authority in the Trump administration. 

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This is a complex question, especially in light of the answer to the first question. If Comey should not continue to serve as director of the FBI, then there is only one person who can fire him: namely, the president. But the president may be perceived as having a conflict of interest, since Comey was investigating people close to him. 

 

On balance, it would have been far better for the president not to have fired Comey at this time, though again, reasonable people could disagree about this in light of the answer to the first question. Had President Trump not fired Comey, the FBI would continue to be led by a person who was no longer qualified, in the view of many Republicans and Democrats, to serve as its director. But reasonable people could believe that President Trump was motivated to fire him by reasons that suggest a conflict of interest.

Because the conflict of interest issue may be more important than the qualification issue, my personal view is that President Trump should not have been the one to fire Comey at this time. It would have been better — or more precisely, less worse — for the questionable status quo to remain than for a more questionable firing decision to be made.

The third question is whether President Trump can now do something that will make the situation right. The answer to that is clearly yes. He can appoint a more qualified, more objective, more credible, more distinguished and less controversial director of the FBI to replace Comey. President Trump’s choice should be beyond any doubt and should be widely accepted by Democrats and Republicans.

An example comes to mind: Chief Judge Mark Wolf, of the United States District Court for the District of Massachusetts, is a distinguished sitting judge and former prosecutor who was appointed to both positions by Republican presidents. He has an outstanding record both as a jurist and as an investigator. He is entirely apolitical. He has fought corruption all his life and is now working to create an international court dedicated to combating corruption around the world. He would continue the ongoing investigations with fairness, integrity and credibility.

There are others like Judge Wolf who could fill the role. It is imperative that President Trump negate the perception that he fired Comey in order to undercut the investigation of those around him. Appointing a credible successor to Comey would go a long way to accomplishing this important goal.

The fourth question is whether Congress should appoint a special commission, like the 9/11 commission, to investigate the matters that Comey was looking into. Such a commission would be bipartisan, or better still nonpartisan, and would be made up of distinguished Americans with experience in investigative matters. That commission, after taking evidence, could then recommend the appointment of a special prosecutor, if such an appointment were warranted.

President Trump’s decision to fire Comey can end up being the defining event in his presidency, depending on what he does next. If he replaces Comey with someone who is, or appears to be, more favorable to him and his administration, a significant crisis of trust could ensue. If, on the other hand, he appoints a more qualified director than Comey and agrees to the creation of an independent commission, President Trump could restore confidence in the American system of justice. 

This decision may be among the most important in President Trump’s presidency. I hope he makes it wisely.

 

Alan M. Dershowitz is the Felix Frankfurter professor of law, emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.” Follow him on Twitter: @AlanDersh or Facebook: @AlanMDershowitz


The views expressed by contributors are their own and are not the views of The Hill.