The shocking dismissal of FBI Director James B. Comey by a president whose campaign he was investigating can’t be undone. The immediate priority is to safeguard the integrity of that investigation and its credibility in the eyes of the public and to preserve the evidence that has been amassed.
That means, first of all, that Comey must be replaced by an acting FBI director with an impeccable reputation for integrity. Equally important, Deputy Atty. Gen. Rod Rosenstein must announce immediately that he will turn responsibility for the investigation of foreign interference with the 2016 election — including possible collusion between the Trump campaign and Russian intelligence operatives — to an independent special counsel empowered to take the probe wherever it may lead.
Rosenstein also should agree to testify at the earliest opportunity before Congress, where he must answer questions about how he came to provide President Trump and Atty. Gen. Jeff Sessions with a not terribly credible written rationale for dismissing Comey related to his handling of an investigation of Hillary Clinton’s email server. If Trump doesn’t want to be suspected of improper motives in Comey’s dismissal, he will waive any claim of executive privilege about any discussions with Sessions and Rosenstein leading to this decision.
The stakes here could not be higher. An election is a sacred undertaking in a democracy, and the possibility that foreign powers or other covert forces meddled with last year’s presidential race is profoundly distressing. If the Trump campaign colluded with Russia in manipulating the election — and no persuasive evidence has yet come to light that it did — such behavior cannot be ignored.
The attempt by Russia to affect the outcome of last year’s election was an assault on American democracy deserving of a serious investigation.
Comey’s firing has been compared to President Nixon’s decision in 1973 to fire Archibald Cox, the special prosecutor who was investigating the break-in at the offices of the Democratic Party at the Watergate office building and the subsequent coverup.
Because Sessions, who as a senator from Alabama was an enthusiastic supporter of Trump’s presidential candidacy, has recused himself from matters involving Russian interference in the 2016 election, the decision about appointing a special prosecutor — now referred to in the regulations as a special counsel — falls to Rosenstein.
Before Tuesday night, one could argue that Rosenstein, a respected career prosecutor, could credibly preside over the Russia investigation. But his role in facilitating Comey’s firing creates an insurmountable appearances problem. He, too, must now recuse himself from the Russia investigation. What’s more, he needs to ensure that the special counsel has maximum independence.
It’s true that Justice Department regulations adopted in 1999 offer special counsels only limited authority. For example, the attorney general (or, in this case, Rosenstein) must be notified concerning significant actions the special counsel is to take, and may countermand any proposed action by the special counsel.
But, according to a study by the Congressional Research Service, the attorney general “may also appoint an individual as a special counsel, and may invest that individual with a greater degree of independence and autonomy to conduct investigations and prosecutions, regardless of any ‘special counsel’ regulations.” That is what happened in 2003 when Patrick Fitzgerald was named as a special counsel “with all the authority of the attorney general” to investigate the leaking of the identity of Valerie Plame, a CIA agent.
That’s the model Rosenstein should follow in this case. Given Trump’s hostility to the investigation of possible ties between his campaign and Russia — on Monday he tweeted that “The Russia-Trump collusion story is a total hoax” — it’s vital that other actors in Washington, including Congress, the Justice Department, the FBI and potentially the courts, be prepared to ensure that any evidence of improper connections between members of the Trump campaign and Russian operatives be discovered and documented.
We don’t know where exactly the FBI’s investigations will lead or whether Trump’s fulminations reflect an attempt at concealment or simply the defense mechanisms of a fragile ego. What we do know is that the president has fired a public official who had stated publicly that his agency was investigating “the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”
The attempt by Russia to affect the outcome of last year’s election was an assault on American democracy deserving of a serious investigation, and that’s what the FBI appeared to be pursuing — especially in comparison with the unimpressive efforts by committees in Congress that have been riven by partisanship. Reportedly the FBI had made sufficient progress that Comey had sought additional funds from the Justice Department a few days before he was fired. It’s vital that this investigation not be derailed by a petulant president with his own agenda. Comey may be gone, but the work he was doing must continue.
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