Editor’s Note: Elizabeth Holtzman is a former U.S. representative from New York. She won national attention for her role on the House Judiciary Committee during Watergate and was subsequently elected district attorney of Kings County (Brooklyn). She is a Harvard Law School graduate and author of “The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens.” The opinions expressed in this commentary are solely those of the author.
Elizabeth Holtzman: My experience during Watergate and the impeachment of Richard Nixon suggests the next steps that need to be taken
Moving on is not one of them, she writes
Watergate has recast its long shadow. The President, taking a page out of Richard Nixon’s playbook, has fired someone investigating him. FBI Director James Comey was terminated most likely because of his continued investigation into whether the Trump campaign colluded with the Russians to defeat Hillary Clinton.
Collusion, if found and proven, could be treason or another federal crime. Firing Comey, if done to stymie the Russia investigation, could be obstruction of justice. Either act could be an impeachable offense.
To be sure, there are superficial differences between the present situation and Nixon’s 1973 order to fire Watergate special prosecutor Archibald Cox, to which many have likened it. First, the FBI director is not the special prosecutor. Second, President Nixon made it crystal clear why he wanted Cox fired – to stop him from getting White House tapes proving Nixon covered up the Watergate break-in.
We don’t know for certain why President Trump fired Comey, but appearances all point to a similar motive: trying to sabotage the FBI’s Russia investigation. Trump’s stated rationales for the firing don’t hold water.
How Comey handled the investigation into Hillary Clinton’s use of a private email server was well-known when Donald Trump took office. It makes no sense to wait almost three and a half months to fire Comey if the Clinton investigation was the reason. Trump now says he fired Comey because he wasn’t doing a good job. But that contradicts the explanations in the Department of Justice letters referenced in Trump’s firing letter. Nor does Trump appear to have made any serious inquiry into what kind of job Comey was doing.
In the last few weeks, the President repeatedly tweeted and stated investigating his campaign’s and Michael Flynn’s connections to Russia was a waste of time and money. But, clearly, he is obsessed with the Russia investigation and can’t seem to stop attacking it. Even after Comey’s dismissal, Trump’s deputy press secretary said we should “move on” from the investigation, which further suggests that was the administration’s objective all along.
My experience as a member of the House Judiciary Committee during Watergate and the impeachment of Richard Nixon suggests the next steps that need to be taken, and “moving on” is not one of them.
Views on Comey's firing
First, Comey’s firing means we now need a special prosecutor/independent counsel. No president should be above the law. No president should control a criminal investigation of his own conduct. That is why Congress enacted the statute I authored in the wake of Watergate, which set up a virtually automatic mechanism for a court-appointed special prosecutor.
Unfortunately, Congress let that mechanism lapse in 1999. Today the decision lies with the deputy attorney general, who has complete discretion over the matter. He might be responsive to public or congressional pressure and appoint a special prosecutor whose independence is above question – or he might not. If not, Sen. Schumer has proposed returning to something like the previous mechanism, so that a three-judge panel would decide on appointing a special prosecutor. Either way, we need one.
Second, Attorney General Sessions should now resign. He recused himself from the Russian investigation because he himself concealed information about his meetings with the Russians from the Senate during his confirmation hearings. Since it was apparent that firing Comey could have been related to that investigation, Sessions should have recused himself from that, too. Instead, he wrote to the President favoring Comey’s firing, which violated his recusal, making his position as AG untenable.
Third, Deputy Attorney General Rosenstein should consider resigning as well. Once the attorney general recused himself, Rosenstein knew he might have to appoint a special prosecutor in the Russia investigation.
Given that, it was a mistake in judgment to write his problematic memo supporting Comey’s firing, which quoted former attorneys general and deputies critical of Comey. Rosenstein took those quotes out of context; it does not appear that any of those criticisms related to whether Comey should be removed. So Rosenstein’s memo was at best disingenuous and at worst deliberately misleading, neither of which the holder of his office can afford to be.
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Finally, Congress needs to take further action. The House and the Senate Intelligence Committees should redouble their efforts to uncover the truth. The Judiciary Committees of both bodies should investigate the firing.
While President Trump may not have the strongest grasp of history, history matters deeply here. If like Nixon he obstructs criminal investigations into his own conduct, he, too, could find himself facing impeachment, possibly even prosecution.