Within hours of President Trump’s firing of James Comey, I went on television and told CNN’s Don Lemon the key question is whether Rod Rosenstein initiated the decision to fire Comey by writing the memo on his own, or whether President Trump directed Rod Rosenstein to write a memo that would justify his firing the FBI Director. The next day, I warned that Rosenstein “may well turn against President Trump,” particularly if he were to appoint a replacement for Comey who was, or appeared to be, partial to the President.
Now evidence has emerged that my concerns may have a basis in fact. President Trump has now acknowledged that he decided to fire Comey before receiving the Rosenstein memo. And The Washington Post is reporting that Rosenstein is threatening to quit if the White House continues to point the finger of blame at him for the decision to fire Comey.
Rosenstein bears some of the responsibility because he knew, or should have known, that his memo would be used to justify the firing. If he did not believe that Comey was being fired because of his advised actions regarding Hillary Clinton during the campaign, then he should not have provided that cover. Now he must do something to restore his integrity and the credibility of the American justice system.
President Trump’s 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.
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 he 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.
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 own 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 for his 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.
Rod Rosenstein helped to create this problem. Now he can help solve it by recommending that the President do the right thing.
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Alan M. Dershowitz is Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of, "Trumped Up! How Criminalization of Political Differences Endangers Democracy," which is now available. Follow Alan Dershowitz on Twitter: @AlanDersh Facebook: @AlanMDershowitz.