Senate Dems: Hey, Maybe We Won't Confirm a New FBI Director Until a Special Prosecutor is Appointed

Posted: May 15, 2017 10:25 AM

A bad idea on several levels. First, it's dumb political overreach. Even if you're willing to overlook Democrats' shameless reversals on firing Comey, the FBI investigation into Russia's election meddling has been a serious (and reportedly escalating) endeavor from the get-go. Comey's temporary successor has assured the public that the former director's dismissal has had no impact on that probe -- which continues apace, with adequate resourcing. This is good news that Democrats and Republicans alike should welcome. A new leader at the Bureau who arrives with unquestionable law enforcement credentials and a strong reputation for independence would be another positive development.  He or she ought to be installed as soon as possible. That's true for any number reasons, one of which is to ensure that potential political interference does not taint the FBI's robust and comprehensive examination of the Russia matter. Therefore, tying the approval of a new FBI chief to a separate political outcome, even if it's arguably somewhat related, looks like a cheap and unserious stunt. But outraged posturing is the coin of the Democratic realm these days, so here's their leader floating this threat:

Probing hearings and a timely vote should be held on the president's selection to fill this critically important law enforcement and national security role. If Trump picks a politicized candidate (I don't like either of these ideas, despite respecting both men), that person should be opposed. If he picks someone with a strong resume who garners cross-partisan esteem, that person should be confirmed as expeditiously as possible. No strings attached. Senate Democrats who are signing on to the Warner/Schumer litmus test also know that they're powerless to block a nominee thanks to the Reid Rule, under which Democrats ended the filibuster for presidential appointments. I'm sure they're once again wishing they had more leverage as the minority party, but they've done this to themselves. That said, an organized Democratic blockade on this confirmation process until and unless a discrete political demand is met would undermine what needs to be -- for the good of the country -- an overwhelming and bipartisan stamp of approval.

By overplaying their hand here, Democrats could further erode public confidence in an important American institution that should be apolitical to its core. A big reason Comey is gone is that he was increasingly viewed as too political an actor.  Much of that is due to the extraordinary and unprecedented hand he was dealt by primary voters in both parties last year, but regardless of how he ended up losing the confidence of elected officials from across the spectrum, it happened. Doubling down on politics now would be a short-sighted mistake.  Another reason why this is a foolish maneuver is that many observers from across the political spectrum are beginning to conclude that a special prosecutor is the wrong mechanism to be pursuing here anyway:

For all the talk of Team Trump "colluding" with the Russians -- of which we've seen no proof, by the way -- former federal prosecutor Andy McCarthy points out an inconvenient reality on the above point:

You don’t need a prosecutor unless you first have a crime...what is the crime? What is the federal criminal offense that could be proved in a court of law under governing law and evidentiary rules? “Collusion” – the word so tirelessly invoked – is not a crime. It is used pejoratively, but it is just a word to describe concerted activity. Concerted activity can be (and usually is) completely legal. Lots of unsavory activity in which people jointly participate is legal, even if we frown on it. In order to be illegal, concerted activity must rise to the level of conspiracy. A conspiracy is an agreement to commit a crime. Not to do something indecorous or slimey; it must be something that is actually against the law, something that violates a penal statute. In the crim-law biz, the crime that conspirators agree to try to accomplish is known as “the object of the conspiracy.” If the object is not against the law, there is no conspiracy – no matter how much “collusion” there is. So, in the ballyhooed “Russia investigation,” what is the object of the purported conspiracy? Notice that although Senator Schumer casually asserts that “a serious offense” has been committed, he does not tell us what that offense is. That’s because there isn’t one. Sorry to be the downer at the pep rally, but it is simply not a federal crime for a foreign country to intrude on an American election by spreading information or misleading propaganda that favors one candidate or damages another.
If it were proven that yes, the Trump campaign really did coordinate with Russian operatives to undercut Hillary Clinton's campaign, that would be an explosive political revelation, but it would not be a crime. (McCarthy goes on to note that President Obama meddled in a string of recent foreign elections, from Israel to Great Britain to France). So Democrats appear to be threatening to gum up the confirmation process of the next FBI Director in order to agitate for a special prosecutor who may very well have...nothing to prosecute.  Their gambit wouldn't just look bad politically, it would likely be attempted in pursuit of the wrong result.  I'll leave you with our conversation about the Comey developments on Tucker Carlson's show Friday night.  Guest host Bill Hemmer makes a strong opening argument that the media's duty is to follow the actual evidence. What a concept:

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