by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Robert Delahunty and John Yoo offer a memo at National Review Online to the nation’s next attorney general.
President-elect Donald Trump and his attorney-general designate Jeff Sessions come to office seeking to restore public confidence in the fairness and impartiality of federal law enforcement. After eight years of Attorneys General Eric Holder and Loretta Lynch, Americans have lost confidence in the Department of Justice. Recognizing this, Trump declared on November 21 that he had ordered his transition team to prepare executive orders to sign “on Day One to restore our laws and bring back our jobs.”
The most urgent matter that Attorney General Sessions will face is that of deciding the fate of FBI director James Comey. Comey was appointed in 2013 for a statutory term of ten years. In principle, however, he can be removed by the president at any time. President Bill Clinton removed FBI director William Sessions about halfway through his term on charges that Sessions had misused official resources. Although President Clinton discharged Sessions for cause, the statute creating the FBI director does not limit the grounds for termination, and we believe that the president’s constitutional authority of removal would allow him to fire Comey for any reason. Rather than firing the FBI director, however, it is more likely that the president would first request his resignation. We think that Director Comey should leave office for the good of the FBI and the nation. …
… Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.
But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.
We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.