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The Comey Firing and the Rule of Law

Deputy Attorney General Rod Rosenstein’s memo recommending the dismissal is entirely based on Comey’s two highly unusual press conferences denouncing HRC while declining to prosecute and then re-opening the investigation ten days before the election. Rosenstein’s ambiguous phrasing in the initial paragraphs (“I cannot defend the Director’s handling of the conclusion of the investigation of Secretary Clinton’s emails”) might suggest that the dismissal was recommended because Comey declined to prosecute, but the memo itself makes clear that this is not the basis for the recommendation.

Nevertheless, I find it very difficult to believe that this rationale–the Rosenstein rationale that Comey should have deferred to the DOJ leadership on the decision whether to prosecute and should not have held the fatal press briefing just before the election–could have served as the basis for Trump’s decision.

So you have this paradox: the president’s alleged acceptance of a recommendation from the attorney general (“based on the reasons expressed by the Deputy Attorney General”) that is almost certainly not itself based on that rationale.

I don’t see how we can maintain that the rule of law matters if reason and rationality are dismissed.

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About the Author

is the Herbert Wechsler Professor of Federal Jurisprudence and Director of the Center for National Security at Columbia Law School, and is a Distinguished Senior Lecturer at the University of Texas.