Firing insubordinate subordinate Comey is not obstruction of justice

Comey, like Trump's other critics, thinks he is an idiot. It is amazing watching their constant attacks on him.  They never got elected President.  They never even got elected as dog catcher.  How many denuclearizations have CNN anchors negotiated?

Rabbi Prof. Dov Fischer, | updated: 08:20

Rabbi Prof. Dov Fisch
Rabbi Prof. Dov Fisch
צילום: PR

Now that Justice Department Inspector-General Michael Horowitz has released his nearly 600-page report on his investigation of FBI practices during the course of the Hillary Clinton e-mail probe, one thing is more settled then ever: former FBI director James Comey had to be fired as fast as possible. 

The I-G’s findings could not have been more clear:  Comey was consistently insubordinate. That is precisely the word used in the report: insubordinate. No company, no business, no organization can function effectively with highly placed but subordinate people working at odds with their superiors, their management, their bosses.


The I-G’s findings could not have been more clear:  Comey was consistently insubordinate. That is precisely the word used in the report: insubordinate.
I have been blessed that, in a lifetime, I have had to fire only four people who worked under me.  Moreover, in certain leadership roles in certain non-profit agencies, I have had to “encourage” the departure of certain volunteers who ran wildcat.  There is no choice.  There can be only one leadership — whether we call that leadership a “Boss,” a “CEO,” a “Board of Directors,” or whatever.  If management is wrong, it must be called to task according to proper and established channels set forth within that association or agency.  Perhaps a Board votes to relieve a CEO or a director.  Perhaps shareholders vote no confidence in their Board.  But no business, no group can function if the people under the top are working at odds from the leadership.

In the course of my various careers, I have worked under people whom I admired.  When I disagreed with them, I figured that they were right and I wrong because they had more experience, more knowledge.  On other occasions, especially as the years passed and I grew in my own experience and knowledge, I occasionally found myself working under people with whom I disagreed, believing more strongly that it was I who am right and they who are wrong.  In all cases, I understood that the boss is the boss.  Thus, I could voice my disagreement to the boss respectfully — and sometimes I even persuaded management to proceed along my recommended course.  On other occasions, I lost the argument and just accepted that I have to do it the boss’s way.

As an attorney who worked on multi-million-dollar complex-litigation corporation defenses at two of the country’s most prominent law firms, I once handled a case that I mastered so well, defended so well, that I felt we either would win at trial or could settle very reasonably, at a mere pittance.  The partner in charge understood my mastery, heard my advice, and then took control of settlement negotiations.  He ended up settling the case by persuading our corporate client to pay many millions more than I believe they should have paid — or that they would have paid if I had handled the negotiations my way. 

I was furious when I learned the results.  At home, I shared with my wife my frustration.  And that is all that anyone else ever again would hear of it.  The next day at work, I congratulated the partner who had given away the store, thus maintaining his confidence, and I avoided the client’s phone call for days, as they had “buyer’s remorse” wondering whether I thought they had done well in the settlement. It would have been insubordinate of me to criticize my boss or to undermine him, even after the fact.  If I indeed felt that intensely that he was not of the quality that I would demand of myself, then all I could decide to do was to refuse ever again to be available to him when he would call and ask me to join a new litigation matter as part of his team.

And indeed I never again was available to work with him.  I always somehow had my plate full with work when he called.  That was it.

That is how it works.  That is how life works.  That is why lots of people, though not everyone, sooner or later go into business for themselves, even if they earn less money.  It just drives them crazy working for people less competent or qualified than they believe they themselves are.

James Comey, as we all have seen these past few years, and amplified these past few weeks during his Narcissism Book Tour, believes he is a genius, a once-in-a-generation protector of all that is good and wholesome, placed on earth to protect us from the morons, misfits, and others whom the people of the United States freely have voted to lead them.  In his position as head of the FBI during the Obama years, perhaps he believed he was wiser than Obama and than Attorney-General Loretta Lynch. And if not wiser, at least more honest and ethical.  Perhaps he believed that Lynch was “in on the fix” to let Hillary Clinton escape prison, and perhaps that partly motivated him to take the lead in deciding whether Clinton should be held to the same legal standards that we apply to mortals.

It does not matter. It was not his call to make.  In the American system of “law” and “order,” we have police who enforce the law on the street as they see possible wrongdoing unfold, and we have judges who then preside over a vetting procedure that we call a “trial,” where a more dispassionate evaluation is made as to whether crime actually has been perptrated and whether punishment accordingly must be meted. 

In the federal justice system, the FBI are the cops, working as part of the DOJ “law and order” rubric.  The Department of Justice attorneys handle the “judge” side of the equation.  It does not devolve on the FBI — the cops — to assess whether a woman who sets up a private email server in her bathroom to evade federal law that compels conducting classified and secret and all other federal business on government servers, belongs in prison. That is not the job of the cops.  Rather, their job is to determine whether they believe there is sufficient evidence that such official business has been conducted on a private server such that the matter must be referred to the “judges” of the Justice Department. 

As director of the federal investigations bureau — the “cops” or the “FBI” — Comey had no authority, no power, no right to make the call as to whether Hillary had broken the law.  That was Lynch’s call to make.  By Comey stepping in and making a “judge” call, this subordinate was insubordinate.

To be sure, I believe that Lynch was crooked in this matter.  If I were the head of the FBI, I would feel awful bringing charges, knowing that Loretta Lynch will end up subverting justice by “fixing the ticket” anyway. But that is the life of every police officer who makes an arrest under a barrage of gunfire, risking his or her life to bring a felon to justice, only to watch the news a year later and see some bleeding-heart judge dropping all charges and letting the accused rapist or muderer free to rape and murder again.  It really is awful — but our society has deemed the alternative to be worse.  We must have a division between the cops and the judges.

Comey continually manifested that identical insubordinate streak — because those are the spots on that leopard — right into the Trump presidency.  He played cat-and-mouse games repeatedly, telling the President that a dossier existed without disclosing sources of the dossier.  Trump saw through him. Trump clearly had every reason to perceive:

“I cannot work with this guy for the next four years.  He is a game-player.  He does not shoot straight.  I need a guy I can trust. I never hired him, but I tried to give him a chance.  And now I see that this character has too many moving parts in his head, and they all center around what is best for him.  So . . . You’re Fired!”

President Trump’s critics think the President to be an idiot. It is amazing watching them daily and reading their attacks on him hourly.  They never got elected President.  They never got elected even dog catcher.  How many denuclearizations have CNN anchors negotiated?  How many world hot spots have CNN panelists calmed down?  How many terrorist nations-within-nations have they silenced?

How many MSNBC experts have straightened out a flat economy, achieved GDP growth?  How many know how to negotiate with street thugs and world terrorists? 

One looks at and listens to these naïve parrots, all tweeting the same tweet:  “President Trump has given away everything”  — when he has given up nothing,.  “President Trump overpromised, and now he has had to cancel the June 12 meeting” — when he simply was jockeying to get more from the meeting that indeed took place on schedule.  “He is ruining long-term alliances with our neighbors” — when he is ruining absolutely nothing and instead is changing the terms of tarriff and trade to our favor.  “He is walking into the NoKo talks unprepared” — when he not only was prepared, as were Secretary of State Mike Pompeo and National Security Advisor John Bolton, but he even had the agreed-upon documents ready for signing.

James Comey, like his Seedier Media sycophants, also took President Trump for a rube.  “I don’t have to follow this moron’s direction,” Comey essentially thought to himself, “because I know so much better than he, and he will lead us down a path to ruin.”

Well, that was Comey’s opinion.  And Trump saw right through him.  Just as any one else — you, I — often can tell when we are talking to someone who does not respect us.  If a person is life-experienced, intuitive, engaged with people — one can tell.  Trump has spent scores of years negotiating and working rooms and looking into people’s eyes and feeling the grip of their handshakes and hearing the staccato breaks in their voices and watching their eyes look aside or their arms fold across their chests or seeing them scratch the itch just above their lips or stroke their hair, each unknowingly sending body signals. 

Some of us are trained to spot those signs; that has been one of my own life skills when I take depositions.  Like all really experienced litigators — and it does not hurt having thirty-five years rabbinical experience, too  — one can intuit with almost 90 percent certainty when he or she is sitting with a liar, a phony. Trump took Comey’s measure early-on and saw that Comey is an inveterate insubordinate.  And absolutely no leader can have highly placed insubordinate subordinates. Those last two words do not work well together.  Therefore, the President not only had every Constitutional authority to fire Comey, but we now also have the I-G report documenting Comey as an “insubordinate” and thereby indirectly validating the firing of James Comey.

Comey was fired because he is a wildcat on whom no boss or manager can rely or depend to follow the company policy.  He deviates in his own direction, secretly and unexpectedly pursues his own lead, often not even disclosing his own end game to his boss.  Fine.  Lots of people are like that.  In America, a land of opportunity, he is the sort who should “go out on his own” — and he will do well.  He should write books, make speeches, open his own candy store, develop an App and market it under his name, sell precious metals.  But he cannot be trusted to work under someone else.

He had to be fired as director of the FBI.  Even before we learned that, on top of everything else, he secretly leaks secret FBI materials to newspapers through confederates. Not only because the President of the United States has Constitutional authority to fire the FBI director but, more, because the President needs to preside.  And he cannot preside when he has brazen insubordinates mucking up the swamp.








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