WASHINGTON, DC - SEPTEMBER 27: FBI Director James Comey testifies during a hearing before the Senate Homeland Security and Government Affairs Committee September 27, 2016 on Capitol Hill in Washington, DC. The committee held a hearing on "Fifteen Years After 9/11: Threats to the Homeland." (Photo by Alex Wong/Getty Images)
The Most Important Decision of the Trump Administration
Alan M. Dershowitz/Gatestone Institute/May 11/17
Having fired FBI Director James Comey, President Trump must now make a decision that could shape the future of our country. He is being accused, both by Democrats and even some Republicans, of a conflict of interest in firing the public official who was heading an investigation of members of his administration, including some who are close him. The letter from respected Deputy Attorney General Rod J. Rosenstein provided a justification for terminating Comey, but many Americans believe that President Trump seized on this letter as an excuse for firing a man whose potential investigative results worried him. They do not believe that the real reason related to Comey’s unfairness to Hillary Clinton. We will never know what went on inside the head of the President. His motives in firing Comey will always remain a matter of dispute. But reasonable Americans of both parties can plausibly believe that he did not fire Comey for the reasons so eloquently set forth in Rosenstein’s letter. Nor do they believe that Rosenstein spontaneously decided, on his own, to write the letter.
Only President Trump can prove that he was motivated by the public interest rather than by personal considerations. He can prove that by appointing a replacement for Comey who is at least as tough and independent as Comey himself. If he appoints such a person, he will allay doubts, at least among reasonable and objective Americans, that he was motivated by a desire to weaken the investigation of the Russian connection. But if he appoints someone who is less likely to be vigorous in uncovering the truth, he will confirm the suspicion of those who question his intentions.
President Trump can also allay doubts if he were to announce his support for an independent Commission, modeled on the 911 Commission, to investigate all aspects of the alleged Russian connection, including the leaks growing out of the current investigation. All Americans should be interested in learning the unvarnished truth about these important issues.
The ball is now in the President’s court. There is a great deal at stake in how the President handles this potential crisis. President Richard Nixon ended up losing his office because of how he mishandled the investigation being conducted by Archibald Cox. President Trump can avoid endangering his presidency if he does the right thing now, even if he did the wrong thing in firing Comey.
President Nixon lost his presidency largely because fellow Republicans turned against him despite his overwhelming victory in the 1972 election. The firing of Archibald Cox turned into the Saturday Night Massacre when his Republican appointees, Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, resigned in protest over his firing of the respected Special Prosecutor. None of this has yet happened in the current situation. But fellow Congressional Republicans and even Deputy Attorney General Rod Rosenstein may well turn against President Trump were he to appoint a replacement for Comey who was, or appeared to be, partial to the President. It is in the President’s interest, as well as in the interest of the country, that Comey’s replacement is beyond reproach or suspicion.
Virtually all the pundits who have commented on the President’s actions have either attacked him vociferously or defended him uncritically. When dramatic events like this occur, the first casualty is nuance. I have chosen, while criticizing the President whose decision to fire Comey, to focus on the future. It is imperative that the President look forward to the impact that his nomination will have on the country, on his party, and on his presidency. He did what he did, and he been justly criticized for creating the appearance, if not the reality, of conflict of interest. The past is not necessarily prologue. President Trump can learn from his mistake and lean over backwards to do the right thing going forward. That right thing begins with who he nominates to replace Comey, and it continues with his support of a truly independent and non-partisan investigative commission.
All Americans have a stake in seeing President Trump do the right thing now.
*Alan M. Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in the Law” and “Electile Dysfunction: A Guide for the Unaroused Voter.”
