The White House Declares War on James Comey

Donald Trump fired James Comey four months ago, but the White House is still hung up on the former FBI director. In a highly unusual move, Press Secretary Sarah Sanders on Wednesday read from the lectern in the Brady Briefing Room a rationale for prosecuting Comey, even as she said it was not her role to decide such questions—appearing to encourage the Department of Justice to investigate a man who poses a political liability for the president.

The latest flare-up of the White House’s war on Comey began with 60 Minutes’ weekend interview with fired White House chief strategist Steve Bannon, who reportedly opposed removing Comey in May. Bannon confirmed to Charlie Rose that he thought firing Comey was the worst mistake in modern political history. “I don't think there's any doubt that if James Comey had not been fired, we would not have a special counsel,” Bannon said.

On Monday, Sarah Sanders replied during a White House briefing, accusingComey of giving “false testimony,” a serious claim that she did not substantiate. On Tuesday, she portrayed the decision to fire Comey as an act of political bravery. “The president was 100 percent right in firing James Comey,” Sanders said. “He knew at the time that it could be bad for him politically but he also knew and he felt he had an obligation to do what was right, and do what was right for the American people and certainly the men and women at the FBI.” She went on:

I think there is no secret [that] Comey, by his own self-admission, leaked privileged government information. Weeks before President Trump fired him, Comey testified that an FBI agent engaged in the same practice; they face serious repercussions. I think he set his own stage for himself on that front. His actions were improper and likely could have been illegal. Comey leaked memos to The New York Times, your own outlet. He politicized an investigation by signaling he would exonerate Hillary Clinton before he ever interviewed her or other key witnesses.  

As reporters immediately realized, that sounded like the president’s chief spokeswoman calling for the Justice Department to prosecute Comey, which would be both an escalation of rhetoric and a highly unusual suggestion that a political opponent face prosecution.

Most experts hold it improper for the White House to instruct DOJ to prosecute anyone, much less a de facto political opponent like Comey. The former FBI director’s testimony will also presumably be crucial to any obstruction-of-justice case against Trump, so Trump’s spokeswoman is arguing for the preemptive prosecution of a key witness against him.

On Wednesday, reporters came with more questions, and Sanders came with a prepared statement that laid out, in detail, the White House’s rationale for prosecuting Comey:

The memos that Comey leaked were created on an FBI computer while he was the director. He claims they were private property, but they clearly followed the protocol of an official FBI document. Leaking FBI memos on a sensitive case regardless of classification violates federal laws including the privacy act, standard FBI employment agreement, and non-disclosure agreement all personnel must sign. I think it’s pretty clean and clear that that would be a violation. That’s not up to me to decide. I’m certainly not an attorney but I think that the facts of the case are clear.

Sanders is indeed not an attorney, which makes her a peculiar person to deliver this argument but also suggests that someone else inside the West Wing must have worked up the rationale that she delivered. Broadly, the White House remains transfixed by Comey. It’s not just the Bannon comment. Axios, which is well-sourced within the White House, reports that Trump aides have concluded that Special Counsel Robert Mueller is focused intently on whether the president obstructed justice in his conversations with Comey and then by firing him. On Tuesday, Trump lawyer Jay Sekulow floated the idea of the Justice Department going after Comey on Twitter.

“Behind the scenes in the West Wing, President Trump continues to rant and brood about former FBI Director Jim Comey and the Russia investigation that got him fired,” Axios’s Mike Allen adds. “Trump tells aides and visitors that the probe now being run by special counsel Bob Mueller is a witch hunt, and that Comey was a leaker.”

In the past, Trump would become enraged about some person and dispatch then-Press Secretary Sean Spicer to the briefing room to light into that person. Sanders, Spicer’s successor, seems to have drawn the same task this week.

The fixation on Comey comes as the White House finds itself in a particular bind over his dismissal. When Trump fired the director, he released a series of memos that justified forcing Comey out based on his handling of the investigation into Hillary Clinton’s use of a private email server and account. According to the memos, Comey had inappropriately politicized the investigation and overstepped his bounds in criticizing Clinton. But that explanation, though held by many people, was tough to take seriously coming from the president, given that Trump had earlier complained publicly that Comey was too lenient in his handling of Clinton.

And indeed, within days, Trump told NBC News’s Lester Holt (and, reportedly, top Russian officials) that he fired Comey because of the investigation into Russian interference in the 2016 election. “Regardless of recommendation, I was going to fire Comey,” Trump said.

That explanation made a great deal more sense, but it raised the possibility that Trump had obstructed justice if he fired Comey to impede Russia investigation. Within days, Deputy Attorney General Rod Rosenstein had appointed Mueller as special counsel. (Hence Bannon’s argument that without a Comey firing, there would be no special counsel.)

Then, earlier this month, The New York Times and Washington Post reported that Mueller was reviewing a draft letter from Trump to Comey, reportedly written by senior aide Stephen Miller. The letter was never sent, with cooler heads apparently prevailing upon Trump to release the memos from the Department of Justice instead, not expecting Trump to so abruptly contradict them. The letter, a “meandering” “rant” according to people who read it, expresses frustration that Comey would not say publicly, as he had privately on three occasions, that Trump was not personally under investigation for collusion with Russia. It also underscores that Trump had decided to fire Comey before the consultations with Justice officials that Trump cited in his formal dismissal.

Faced with more evidence that Trump’s initial public rationale for firing Comey was misleading, the White House seems to have constructed an ex post facto legal justification for the dismissal, which Sanders delivered on Wednesday. There’s an elegance to it: Trump is currently under investigation for firing Comey, but if he can reframe Comey as the real lawbreaker, it both takes him off the hook and undermines any testimony that Comey might deliver against him.

There are a few problems, though. One is the impropriety of the White House encouraging prosecution of anyone, especially a political problem like Comey. (Sanders’s repeated insistence that this is the Department of Justice’s decision to make do not change the fact that it’s consequential for the president’s spokeswoman to make such statements publicly.) The question of whether Comey acted inappropriately in sending his memos to a friend who is a law professor at Columbia is a murky one, though it’s unclear any prosecutor would bring charges against him even if he was in the wrong—ironically, the same conclusion that Comey drew about Clinton’s email server.

The White House wishes to argue not only that Trump did not obstruct justice in firing Comey, but that he was manifestly right to do so because of Comey’s alleged misconduct. But the latest statements go one step further, arguing that Comey ought to face prosecution in addition to firing.

This conflicts with the arguments that Trump reportedly made to Comey himself in the case of Michael Flynn. Flynn, who is under investigation for lying to the FBI and for failing to disclose various lobbying work, among other issues, was fired from his post as national-security adviser in February after news reports revealed he had lied to the vice president about his conversations with then-Russian Ambassador Sergey Kislyak. In that case, the White House argued that Flynn’s firing was punishment enough, and Trump allegedly pressured Comey to drop the FBI’s investigation into him. “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump told Comey, according to one of the memos that Comey wrote and then gave to his friend at Columbia. “He is a good guy. I hope you can let this go.” There appears to be a double standard: For Trump’s friends, firing is adequate punishment, but for foes, prosecution is also necessary.

Could the latest barrage against Comey successfully undermine him, and slow down any case against Trump? It’s possible. But Comey’s reputation for probity in Washington is strong, as demonstrated by senators’ deference during a June hearing, and the special counsel is an old colleague of his. Besides, as Steve Bannon might warn his old boss, sometimes going after Comey doesn’t have quite the Trump it intends.