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Comey argues Trump shouldn't be prosecuted after leaving Oval Office

James ComeyJames Brien Comey'Fox News Sunday' to mark 25 years on air Showtime developing limited series about Jan. 6 Capitol riot Wray says FBI not systemically racist MORE, the former FBI director who has emerged as a critic of President TrumpDonald TrumpThe Memo: The Obamas unbound, on race Iran says onus is on US to rejoin nuclear deal on third anniversary of withdrawal Assaults on Roe v Wade increasing MORE since his firing, writes in his new book that the commander in chief should not be prosecuted after leaving the White House despite any evidence against him.

Comey wrote that President-elect Joe BidenJoe BidenDefense lawyers for alleged Capitol rioters to get tours of U.S. Capitol Sasse to introduce legislation giving new hires signing bonuses after negative jobs report Three questions about Biden's conservation goals MORE’s attorney general should not “pursue a criminal investigation of Donald Trump,” according to an excerpt obtained by The Guardian.

The Justice Department should not probe the outgoing president “no matter how compelling the roadmap left” by former special counsel Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE or “how powerful the evidence strewn across his history of porn stars and financial fraud,” according to Comey.

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“Although those cases might be righteous in a vacuum,” he wrote, “the mission of the next attorney general must be fostering the trust of the American people.”

The stance is surprising coming from the former FBI director, whose abrupt firing in May 2017 served as the catalyst behind the Mueller investigation into Russian election interference and possible Trump campaign contacts with Russia.

Mueller said he did not reach a conclusion on whether Trump committed obstruction of justice, though Attorney General William BarrBill BarrDemocrats, activists blast Trump DOJ effort to get journalists' phone records Trump admin got phone records of WaPo reporters covering Russia probe: report The Hill's Morning Report - Presented by Emergent BioSolutions - Facebook upholds Trump ban; GOP leaders back Stefanik to replace Cheney MORE later said he and then-Deputy Attorney General Rod RosensteinRod RosensteinProtect the police or the First Amendment? Rosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' Comey argues Trump shouldn't be prosecuted after leaving Oval Office MORE reviewed evidence laid out in the report and found it insufficient to accuse the president of obstructing the probe.

Trump has reportedly considered pre-emptively pardoning himself and members of his family to block any potential prosecution after he leaves the Oval Office on Jan. 20. However, it is unclear whether courts would interpret a blanket self-pardon by a president as constitutional.

In his book, Comey reportedly pointed to a 1915 Supreme Court ruling that says a presidential pardon amounts to a confession of guilt.

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When President Nixon was considering a self-pardon in the aftermath of the Watergate scandal in 1974, the Justice Department issued a memo finding that it would be unconstitutional. Nixon was ultimately pardoned by President Ford, though he was never charged for his role in Watergate.

Comey wrote in his book that he doubts whether Trump should be pardoned by his successor.

“By pardoning a resigned president, Ford had held [Nixon] accountable in a way that Trump would not be, even where he to be pardoned after losing re-election. That might not be enough accountability in Trump’s case. Or it may be, especially if local prosecutors in New York charge Trump for a legacy of financial fraud.”

Trump's pardon power applies only to federal crimes, not state crimes. The president is still facing an investigation from the Manhattan District Attorney’s Office.

The probe, which began in 2018 to look into alleged payments given to two women who claimed to have had affairs with Trump, has now expanded to include potential wrongdoings by Trump’s larger businesses activities.

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Prosecutors have suggested in court filings that Trump and his businesses could be investigated for tax and insurance fraud.

“Whether or not our next president pardons Donald Trump, and whether or not the Department of Justice pursues him, the American people should be told why," Comey wrote in a call for transparency. 

His new book, “Saving Justice: Truth, Transparency and Trust,” will be published on Jan. 12. Comey described it as a book for “ordinary citizens, not legal experts or historians.”

Comey's “A Higher Loyalty” was released in April 2018 and was turned into a two-part HBO film last year titled “The Comey Rule,” starring Jeff Daniels as the then-FBI director and Brendan Gleeson as Trump.