The FBI Is Not a Separate Branch of Government

By Rich Lowry
Wednesday, February 20, 2019

It’s too early to take away any clear lessons from the Trump era, except one: Whatever you do, never fire the FBI director.

Yes, as president, it is fully within your power to cashier inferior executive-branch officers. But if the aftermath of the James Comey firing is any indication, it risks backlash from FBI and Justice Department officials who will take umbrage — and extraordinary steps in response.

This is the upshot of the 60 Minutes interview of former Deputy Director Andrew McCabe. The Comey firing was ham-fisted and unsettling given the ongoing investigation of Russian interference into the 2016 election. But what ensued was an embarrassing freakout by law-enforcement officials entrusted with awesome powers.

According to McCabe, Deputy Attorney General Rod Rosenstein brought up invoking the 25th Amendment.

It’s worth considering how this Rube Goldberg amendment is supposed to work: The vice president takes power if he and a majority of the Cabinet declare in writing to the Senate and the House that the president is “unable to discharge the powers and duties of his office.”

Then the president can contest the declaration, also in writing, to the Senate and the House. If the vice president and a majority of the Cabinet still say he can’t serve, Congress has 21 days to vote on the question. If two-thirds of both houses says he can’t, the vice president remains acting president.

Anyone who believes that this was a remotely plausible or appropriate means to depose Donald Trump should have his own ability to discharge his duties examined.

First of all, Trump obviously was perfectly capable of discharging his duties; he just discharged them in a way alarming to McCabe and Rosenstein. His response to an effort by his Cabinet to join such an exercise would have been to fire anyone involved, which he could have done because, again, he wasn’t incapacitated.

McCabe also says that Rosenstein twice discussed wearing a wire to record the president and wasn’t joking. (A source told the New York Times when it originally broke the story that Rosenstein meant it sarcastically; his own denials have been carefully worded.)

The FBI didn’t go this far, but it did open, per McCabe, two probes into the president to determine if he was a Russian agent or had obstructed justice.

Consider the lunacy of this: By providing Trump with a memo justifying Comey’s firing, Rosenstein participated in the scheme that the FBI considered a possible crime, or the culmination of a Russian plot. Then Rosenstein turned around and appointed a special counsel, whom he oversaw, to investigate the possible crime to which he was a party.

It’s also absurd that the FBI officials considered the firing of Comey to be potential obstruction of the investigation that they were continuing, and indeed making more serious by making the president an explicit target.

The comments that Trump made about Russia that McCabe and Co. found so disturbing were hardly damning. In his cover letter over Rosenstein’s memo, Trump mentioned that Comey had told him three times that he wasn’t under investigation. This was true, and Trump was frustrated that Comey wouldn’t make it public. That doesn’t make him a Russian agent.

In his notorious Lester Holt interview, Trump said he fired Comey because there wasn’t anything to him and Russia. He didn’t say he wanted to shut down the probe; indeed, he said he understood it would now probably go on longer.

Perhaps Trump’s comments in his ill-considered meeting with the Russian foreign minister and ambassador in the immediate aftermath of the Comey firing were worse, but it’s hard to say absent a transcript.

What McCabe’s version strongly suggests is that the FBI took upon itself to be a check on the president of the United States. This is not its appointed role in our system. If the president abuses his powers, that’s a matter for Congress to take up, not for executive-branch officials whose panic eclipsed their judgment.