Former Attorney General Michael Mukasey said Wednesday that President Donald Trump’s reported urging of FBI Director James Comey to drop part of the ongoing Russia-U.S. election probe was “not appropriate” and suggested that Trump has thus far failed to appreciate the shift from being a real estate mogul to being the nation’s chief executive.
“That conversation may be appropriate to a minor disciplinary matter in a corporation. It’s not appropriate to a criminal investigation and the inability to distinguish the one from the other I think is extraordinary,” said Mukasey, who served as attorney general under President George W. Bush and was a frequent public surrogate for Trump during last year’s campaign.
Speaking at a panel discussion in Washington sponsored by the conservative Federalist Society, Mukasey said Trump had the authority as chief executive to end the investigation if he chose to, but the casual sounding interaction with Comey wasn’t the right way to do it.
“The president, I think….has the power to direct that an investigation cease, but that wasn’t—as the story is told that’s not what happened,” the former attorney general said. “This kind of informal, ‘Would you cut this guy some slack? He’s a nice guy,’ that kind of conversation about an ongoing proceeding conducted in a manner that is extraordinarily informal…suggests a complete unconsciousness of what it is that’s actually happening.”
Mukasey expressed no disagreement with Trump’s controversial and high-stakes decision to fire Comey, but said the president’s timing was less than ideal. The former AG said he believes the 10-year term Congress set for the job does not signify that directors were supposed to stay that long or that the president should be restrained in dismissing an FBI chief. (Comey was appointed by President Barack Obama in 2013 and dismissed last week, after less than four years as director.)
“I think the 10 years was really intended to be a maximum, not a minimum,” Mukasey said. “That said, the ideal time to have done that would’ve been on Jan. 20th.”
The former attorney general spoke alongside President Barack Obama’s final White House counsel, Neil Eggleston. Both men said they could not conceive of their bosses having the conversation Trump reportedly had with Comey in February, urging him to back away from any further investigation of former national security adviser Michael Flynn. The New York Times first reported Tuesday, and POLITICO later confirmed with a Comey ally, that the FBI chief wrote memos about that meeting and other interactions with Trump.”
Asked if that could have happened under Bush, Mukasey said: “One word answer: No.” He later said he was aware of no such White House involvement in criminal cases or investigations during his tenure.
“The norm was observed,” the former AG said.
Eggleston said Obama’s White House had and generally adhered to a policy of not discussing investigations with people at the Justice Department.
“It would not have happened while I was in the White House,” the former White House counsel said. “We would not have been talking to the FBI director or attorney general about a specific investigative matter…That just would not happen.”
Eggleston later acknowledged that the Obama White House did have discussions about where the alleged conspirators in the September 11 attacks would be tried, but he said that was really about the place it would happen, not what charges would be brought.
Mukasey challenged the Obama White House’s purity on the subject by noting that Obama did say in an October 2015 interview that former secretary of state and Democratic presidential candidate Hillary Clinton had not jeopardized national security through her private email set-up. That rankled some investigators as “a statement that I think was regarded in some quarters as the king’s wish,” the attorney general said.
“He was talked to by the White House counsel after that,” Eggleston chimed in.
“Good,” Mukasey replied.
Whatever counsel Eggleston may have given the president, in April 2016, Obama repeated his view that Clinton’s hadn’t threatened national security through her email practices. However, the president added this caveat: “Nobody gets treated differently when it comes to the Justice Department, because nobody is above the law.”
Mukasey said he would not fault White House spokespeople for having publicly said at press briefings twice in the past week that there was no basis to appoint a special prosecutor to look into alleged Russian interference in the election and the Trump campaign’s potential involvement in that.
“If you look at Title 18 [the U.S. Criminal Code], you’ll find no crime defined as collusion. There is a crime called conspiracy that requires an agreement to do something….If the result was the hacking that was complete before any collusion, if there was any, took place. So the notion that you need a special prosecutor looking into that is remote,” the former attorney general said.
“I also am not a fan generally of special prosecutors,” Mukasey added. “They make work for themselves and feel the need to produce results, generally in the form of an indictment…. You can’t have somebody who’s independent of the executive. Prosecution is inherently an executive function. We don’t in times of crisis straddle a new branch of government that’s independent of the others. It’s an illusion.”
In 2008, Mukasey went outside the normal Justice Department process, although not outside the department, to name a prosecutor to investigate the destruction of interrogation videos by the CIA. He tapped a career federal prosecutor from Connecticut to head up the probe, which convened a grand jury but ultimately sought no charges.
Eggleston didn’t directly criticize the Trump White House for dismissing the need for a special counsel, but he said that also would not have happened in the Obama era.
“We wouldn’t have commented about whether there should be an investigation [or] who should conduct the investigation,” the former Obama lawyer said. “This White House and this president has obviously made a different decision, including in tweets about those kinds of things, but they made a different judgment than we made about whether we should be involved in these kinds of matters. That’s a norm that they’ve decided not to follow…which is a decision that they’re entitled to make.”