White-Collar Crime

James Comey And The Sin Of Believing In Your Reputation

James Comey would've been a lot better off if he'd kept his mouth shut.

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Photo by Eric Thayer/Getty Images

Photo by Eric Thayer/Getty Images

A few years ago, a lawyer friend of mine was listening to the radio while he was driving. As he worked through the stations, it turned out that a talk show was doing a program about a case he worked on a few years earlier — one that had consumed much of his life. The appeal case had happened a few years earlier and the show was doing something of a retrospective.

The host invited callers and gave out the number. My friend, eager to talk about this case that had now vaulted out of his memory, called the number. He explained who he was and that he was one of the lawyers on the case and was put on the air.

The host introduced him as a special caller with unique insight into the case. My friend explained his role, and talked about how important the case was to him.

The host asked him a question about one of the issues in the heart of the case. My friend’s response?

“No comment.”

It went on like that for a while. Each time, the host wanted to know more about the case from a lawyer at the heart of it. Each time, my friend was duty bound to say nothing.

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He was just so excited to be a part of the conversation that it didn’t occur to him there was nothing he was allowed to say.

James Comey, over the last year or so, has reminded me a lot of my friend. He’s been so eager to talk about Hillary Clinton’s emails that he just forgot there’s nothing that it would be proper for him to say.

He marched out over the summer to say that no reasonable prosecutor would charge her. This is, of course, not his job. The FBI director is not in charge of deciding what a reasonable prosecutor would do, or what the bounds of “reasonable” are for prosecutors.

Perhaps concerned that this looked too fair to the former Secretary of State, he then launched into a detailed discussion of what he believed to be her misdeeds. Again, detailing the results of an investigation is just not what the FBI does.

Throughout it all, Comey has had the unshakable belief that if Comey thinks it’s the right thing to do then, because he is a principled person of high integrity, it must be the right thing to do. An entire textbook on how not to reason could be built around Comey’s opinion of himself.

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There’s a lot to talk about in how Comey was fired. The timing strongly suggests a political motive, as well as the many many leaks coming out of the White House. Many are concerned that the Deputy Attorney General, Rod Rosenstein, who is rightly seen as a career DOJ official and not a Trump operative, showed different colors — though it appears now that he was directed by the President to write something with a rationale for firing Comey and has threatened to quit as the White House has described him as the prime mover behind Comey’s firing. (Which makes one wonder exactly how long Rosenstein will be serving in the Trump administration.)

Comey, over the last year, came to occupy an impressive place in Washington. He was hated by Democrats because of his late October letter that many believe cost Hillary Clinton the election. He was hated by Republicans because he foreclosed prosecution of her. And he appears to have been resented by the President because he kept mentioning the Russia investigation causing people on cable news to say things the President doesn’t like.

This is not a position the FBI ought to be in. And it’s not a position the FBI needed to be in.

If you credit Rosenstein’s letter as the real reason why Comey was fired, he was let go because he just can’t stop talking. (“Reason.” There is a slippery concept; it can mean “motivation” for firing or “justification” for firing. Here it looks to be the justification, regardless of the President’s actual motivation.) Comey can’t stop talking, because he’s already started, and because — in his mind — if Comey is doing something it must be the right thing to do.

The one trait we need from people in law enforcement — or, frankly, in society in general — is the humility to recognize that each of us could be wrong. Comey had strengths, to be sure. But his immovable belief in his own rectitude kept him from seeing that James Comey was not the caller we needed for this show.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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