Here’s the Justice Department memo that led to Comey being sacked (full text and analysis)

In the hours since FBI Director Comey’s sacking there have been some suggestions that Assistant Attorney General Rod Rosenstein did not recommend his sacking in the memo which preceded it.

That is certainly wrong as the text of the memo itself shows.  I herewith set it out in full:

MEMORANDUM FOR THE ATTORNEY GENERAL

FROM: ROD J. ROSENSTEIN

DEPUTY ATTORNEY GENERAL

SUBJECT: RESTORING PUBLIC CONFIDENCE IN THE FBI

 

The Federal Bureau of Investigation has long been regarded as our nation’s premier federal investigative agency. Over the past year, however, the FBI’s reputation and credibility have suffered substantial damage, and it has affected the entire Department of Justice. That is deeply troubling to many Department employees and veterans, legislators and citizens.

The current FBI Director is an articulate and persuasive speaker about leadership and the immutable principles of the Department of Justice. He deserves our appreciation for his public service. As you and I have discussed, however, I cannot defend the Director’s handling of the conclusion of the investigation of Secretary Clinton’s emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.

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. The Director now defends his decision by asserting that he believed Attorney General Loretta Lynch had a conflict. But the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General. On July 5, however, the Director announced his own conclusions about the nation’s most sensitive criminal investigation, without the authorization of duly appointed Justice Department leaders.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

In response to skeptical questions at a congressional hearing, the Director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then if prosecution is warranted — let the judge and jury determine the facts. We sometimes release information about closed investigations in appropriate ways, but the FBI does not do it sua sponte.

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 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.

My perspective on these issues is shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties. Judge Laurence Silberman, who served as Deputy Attorney General under President Ford, wrote that “it is not the bureau’s responsibility to opine on whether a matter should be prosecuted.” Silberman believes that the Director’s “performance was so inappropriate for an FBI director that [he] doubt[s] the bureau will ever completely recover.” Jamie Gorelick, Deputy Attorney General under President Clinton, joined with Larry Thompson, Deputy Attorney General under President George W. Bush, to opine that the Director had “chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions.” They concluded that the Director violated his obligation to “preserve, protect and defend” the traditions of the Department and the FBI.

Former Attorney General Michael Mukasey, who served under President George W. Bush, observed that the Director “stepped way outside his job in disclosing the recommendation in that fashion” because the FBI director “doesn’t make that decision.” Alberto Gonzales, who also served as Attorney General under President George W. Bush, called the decision “an error in judgment.” Eric Holder, who served as Deputy Attorney General under President Clinton and Attorney General under President Obama, said that the Director’s decision “was incorrect. It violated long-standing Justice Department policies and traditions. And it ran counter to guidance that I put in place four years ago laying out the proper way to conduct investigations during an election season.” Holder concluded that the Director “broke with these fundamental principles” and “negatively affected public trust in both the Justice Department and the FBI.”

Former Deputy Attorneys General Gorelick and Thompson described the unusual events as “real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation,” that is “antithetical to the interests of justice.”

Donald Ayer, who served as Deputy Attorney General under President George H.W. Bush, along with other former Justice Department officials, was “astonished and perplexed” by the decision to “break[] with longstanding practices followed by officials of both parties during past elections.” Ayer’s letter noted, “Perhaps most troubling … is the precedent set by this departure from the Department’s widely-respected, non-partisan traditions.”

We should reject the departure and return to the traditions.

Although the President has the power to remove an FBI director, the decision should not be taken lightly. I agree with the nearly unanimous opinions of former Department officials. The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions

(bold italics added)

The highlighted words in the memo show that Rosenstein – a highly regarded official with a reputation for strict impartiality – is definitely of the view that Comey is not a suitable person to head the FBI, even if – as the President has admitted – the decision to sack Comey came from the President and not from him.

The memo has been widely misunderstood with the wrong focus being given to the comments in the memo concerning Comey’s decision to reopen the Hillary Clinton email investigation in October when some of her emails turned up in the computer of Anthony Weiner, the estranged husband of Hillary Clinton’s aide and confidante Huma Abedin/

In fact the focus of Rosenstein’s criticism is on Comey’s decision to close down the original investigation in July without reference to the Justice Department.  The key words are these

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. The Director now defends his decision by asserting that he believed Attorney General Loretta Lynch had a conflict. But the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General. On July 5, however, the Director announced his own conclusions about the nation’s most sensitive criminal investigation, without the authorization of duly appointed Justice Department leaders.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

The clear implication of these words is that Comey took it upon himself to close down an investigation – something which he had no power or authority to do – despite revealing in a subsequent news conference that Hillary Clinton had a serious case to answer.

Compare that with what I myself said about the Hillary Clinton email controversy shortly before the election

Which brings me to the subject of Hillary Clinton’s emails.

I am not an expert on the US law in question.  However it looks to me like a standard law for the handling of classified or confidential material, of which there are many.  As is common with such laws, it is a law of what the British call “strict liability” ie. motive is irrelevant, and a crime is automatically committed if the the terms of the law are breached. 

What that means is that it is technically irrelevant whether Hillary Clinton breached the terms of the law intentionally or carelessly (as she says).  If she breached the terms of the law then she is or should be guilty of the crime set out in it.

I think it is fair to say that most people familiar with this law agree that Hillary Clinton was very fortunate not to have been prosecuted when the FBI first investigated her over the emails.  Most of these people also agree that anyone else in the same position would almost certainly have been prosecuted if they had done the same thing.

As it happens Hillary Clinton not only failed to provide any remotely satisfactory explanation of why she used a private server in breach of the terms of the law, but she has also admitted deleting tens of thousands of emails (apparently on the grounds they were “private”) and of having destroyed hard drives to make retrieval of these emails impossible.

Again I think it is fair to say that most people who know about these things would expect in those circumstances a prosecution for obstruction of justice; and that most of these people think that Hillary Clinton is either very privileged or very lucky that no such prosecution was brought against her. 

Hillary Clinton is by all accounts a very capable lawyer.  As a lawyer she would have been required to keep clients’ information confidential as a normal part of her work.  Hillary Clinton was also one of the lawyers involved in the hearings of the Watergate scandal, in which mishandling of confidential information was a central issue.  She cannot therefore claim to be ignorant about these sort of issues.  

Hillary Clinton has also served in the White House as a member of her husband’s administration, and was a US Senator before Obama appointed her US Secretary of State, when the scandal of the emails took place.  Again the handling of secret and confidential information would have been a normal part of her work.

We are therefore talking about someone who has been handling confidential and classified information all her working life, and who is or should be fully aware of the relevant rules and protocols involved in handling it, and of the legal consequences of not abiding by them. 

Speaking as someone who has also had experience of handling confidential information, I can say that after a time observing the proper protocols becomes second nature.  It is well-nigh incredible to me – and I suspect to many other people – that this was not so in Hillary Clinton’s case.

It is also well-nigh incredible to me that a lawyer as experienced as Hillary Clinton would not in the event of an FBI investigation immediately take steps to ensure that all the evidence – meaning of course all the emails – was tracked down, carefully preserved, and handed over immediately to the FBI.  That tens of thousands of emails were instead deleted, that hard drives were destroyed, and that emails should now be turning up months later in a laptop in the possession of the estranged husband of a senior aide who is being investigated on sex crime charges, would be quite literally beyond belief were it not actually happening

Frankly, piecing it all together, it seems to me that Rosenstein’s memo lends force to those who say the decision to close down the FBI investigation was a politicized one to protect Hillary Clinton, with the implication in that case being that because it was difficult for Loretta Lynch to do it after her compromising conversation with Bill Clinton. Comey stepped onto the plate to do it instead/

If so then it is not inconceivable that the Hillary Clinton email investigation may be reopened, though in truth that seems very unlikely and will in any event depend on Rosenstein surviving the storm that is now swirling around him.  Indeed it is not surprising in light of his memo that there now seems a concerted attempt underway to force him to resign.