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Comey Dismissal Memo Suggests Turf War Between DOJ, FBI

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Kevin Daley Supreme Court correspondent
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Deputy Attorney General Rod Rosenstein’s letter detailing the Department of Justice’s (DOJ) rationale for calling for the dismissal of former FBI Director James Comey is heavy on professional grievance.

The memo, submitted to President Donald Trump on Tuesday, strongly suggests that officials at the Justice Department felt Comey improperly assumed prerogatives that rightly belong to career prosecutors at DOJ, instigating a bureaucratic turf war that left department officials displeased.

The memo opens with Rosenstein’s conclusion that Comey’s press conference on July 5, 2016, where he announced he would not recommend criminal charges over Hillary Clinton’s use of a private email server, “usurped” the authority of his superiors at the Justice Department.

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.

The use of terms like “usurp” and “supplant” are both arresting and telling, as is Rosenstein’s assertion that Comey effectively “assumed command” of DOJ. This section of the memo argues Comey’s public statements stripped DOJ officials of prosecutorial discretion. In disclosing legal conclusions to the public, the former director foreclosed a number of options for department officials, leaving them little choice but to decline to pursue a case against Clinton. What’s more, the memo also states it was improper for Comey, whose role is restricted to finding facts, to reach any legal conclusions in the first place.

The thrust of this section of the letter is that Comey overstepped his bounds and made decisions, which were the province of the Justice Department, to the chagrin of many inside the agency. One might also reasonably speculate that many in DOJ’s non-political career staff share Rosentein’s conclusions. Rosenstein himself is a product of the career bureaucracy, and is respected in all quarters of DOJ.

A recent Politico Magazine piece on Comey’s political isolation seems to corroborate the possibility of widespread displeasure with the embattled director. The piece includes several quotes from aggrieved and anonymous sources inside the department impugning Comey’s integrity.

“He seemed to think that what was good for Comey is good for the institution. That’s jarring,” one senior Justice Department official said.

“He’s rapturous of his own righteousness,” said another.

Elsewhere in the memo, Rosenstein invokes terms like “tradition” and “longstanding principles,” which seem to reinforce his contentions about the scope of the department’s power, over and against law enforcement agencies under its supervision. To this end, the memo also includes quotes from former DOJ officials vindicating the deputy AG’s assertions — though at least one of those officials disavowed the memo to BuzzFeed News as a thin veneer for a political dismissal.

The possibility of inter-agency conflict is only a small part of this story, which is certain to drive news for the coming weeks. Still, it suggests more is afoot here than appearances suggest.

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