Former FBI Director James Comey is annoyed by Trump defenders who are hoping that newly inducted Attorney General William Barr will keep as much of Special Counsel Robert Mueller’s report detailing his team’s findings as possible from ever reaching the eyes of the general public when it is completed.
Comey is so annoyed that he took to the op-ed page of The Washington Post to explain to the public that the prior practices of the Justice Department indicate that Attorney General Barr can make a much broader disclosure of Mueller’s final report than they may realize if he truly wants to be as “transparent as possible” with the report as he told Congress during his confirmation hearings.
Comey acknowledges that while the privacy rights of individuals subject to an investigation in which they are never charged with a crime are extremely important, the Justice Department must also consider the larger public interest at hand in matters of national importance.
“Providing detailed information about a completed investigation of intense public interest has long been a part of Justice Department practice. It doesn’t happen often, because ordinarily nothing outweighs the privacy interests of the subject of an investigation that ends without public charges. But department tradition recognizes that transparency is especially important where polarized politics and baseless attacks challenge law enforcement’s credibility. In critical matters of national importance, a straightforward report of what facts have been learned and how judgment has been exercised may be the only way to advance the public interest,” the former FBI Director writes.
Comey then goes on to list a number of instances where just such a situation took place in the past. His first example is the FBI’s investigation of the Ferguson, Missouri slaughter of Michael Brown by a white police officer which resulted in no charges being filed against Brown’s killer.
“Because there was intense, legitimate public interest — and significant doubt about law enforcement independence — the department publicly released an 86-page report in March 2015 detailing the entire investigation — what was done, what was found and how the evidence compared to governing legal standards, including an evaluation of the conduct and statements of individuals,” Comey explained.
The former FBI chief — famously fired by President Trump because of “this Russia thing” — also points to the FBI investigation into Republican allegations that the IRS was discriminating against Tea Party political groups because of their conservative beliefs. That case also ended with a decision by the Bureau that no crimes had been committed and no prosecution was warranted.
However, because the news of the investigation raised questions of public confidence in the ultimate impartiality of the IRS, “the Justice Department provided Congress with an eight-page, single-spaced public report that laid out the investigation, the evidence found and a legal assessment. The department not only explained why no charges were appropriate but also discussed, by name, the conduct of a key subject of the criminal investigation — IRS supervisor Lois Lerner — writing that she had used ‘poor judgment’ but that ‘ineffective management is not a crime. . . . What occurred is disquieting and may necessitate corrective action — but does not warrant criminal prosecution,’” according to Comey.
Comey goes on to cite the case of José Padilla — an American citizen accused of terrorist connections who was captured on U.S. soil and imprisoned as an enemy combatant in a navy brig by the order of President George W. Bush — and his own handling of the investigation of Hillary Clinton’s email server scandal as other examples where the public interest in ensuring that the credibility of the FBI’s investigation is clearly preserved supplanted any privacy concerns by the unindicted targets of the investigations.
Of the Clinton investigation — which many Democrats regard as a key factor in throwing the election to Trump — Comey says:
“…we were ending a criminal investigation of a candidate for president, one overseen by Justice Department political appointees from the candidate’s political party. The decision to decline prosecution would have been far less credible without those details, causing lasting damage to the department’s reservoir of trust with the American people. Democrats were wrong about transparency then.”
Comey, however, tars Republicans with the same brush in regards to their attempts to protect President Trump from the potentially damaging details that may be contained in the Mueller report once it’s completed.
“But Republicans are wrong now, when they claim Justice Department rules forbid transparency about the completed work of the special counsel. It is hard to imagine a case of greater public interest than one focused on the efforts of a foreign adversary to damage our democracy, and in which the president of the United States is a subject. I don’t know all the considerations that will go into deciding precisely what to say about the completion of the special counsel’s work and when to say it. It’s always important to consider guidelines and routines. But don’t listen to those who tell you transparency is impossible. Every American should want a Justice Department guided first and always by the public interest. Sometimes transparency is not a hard call.” Comey concludes his op-ed.
Attorney General Barr should read Comey’s op-ed and consider it carefully before he decides what he should and shouldn’t include in the summary of Mueller’s final report. If significant details are left out and the public feels like another coverup is in the works, restoring confidence in America’s justice system will be nearly impossible.
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