The Washington Post reports:
“Sen. John Cornyn of Texas, the second-ranking Senate Republican who has in recent weeks become a more outward defender of President Donald Trump, and acting FBI director Andrew McCabe, who on Thursday contradicted the Trump White House on a range of topics, will interview Saturday to serve as the FBI’s permanent director, according to people familiar with the matter.
“The men are two of at least four people who will interview to replace James B. Comey, whom Trump suddenly fired earlier this week, the people said.
“The others are Alice Fisher, a white-collar defense lawyer who previously led the Justice Department’s criminal division, and Michael J. Garcia, a judge on the New York State Court of Appeals who previously served as the U.S. attorney for the Southern District of New York.”
Other names mentioned include two partisans, Rep. Trey Gowdy, R-S.C., and former congressman Mike Rogers, R-Mich., who were enmeshed in the Benghazi investigations that ultimately went nowhere. The notion that a partisan Republican would even be considered suggests a lack of appreciation for the damage done to the president’s credibility and the independence of the Russia investigation.
Among those interviewing the next director is Attorney General Jeff Sessions, whose participation in the firing of James B. Comey raises ethical and legal questions. Rod J. Rosenstein, the deputy attorney general whose memo was used as a pretext for firing Comey, is also participating. How are we to know if the contenders will be asked about the ongoing investigation? How will we know they will not be selected because they hint at a jaundiced view of the Russia investigation? (The investigation has metastasized with the report that the Justice Department is seeking “banking records of Paul Manafort as part of a widening of probes related to President Donald Trump’s former campaign associates and whether they colluded with Russia in interfering with the 2016 election.”) We won’t — unless the president’s conversations are in fact being recorded.
Democrats are threatening to stall the hearings on a new FBI director unless Rosenstein agrees to name a special counsel (to replace himself in overseeing the FBI probe into Russian interference in the election). However, they may reconsider after hearing his testimony this week in a briefing for all 100 senators. He may provide information and/or establish credibility with the Senate that persuades both Republicans and Democrats to leave him in place to continue investigating the Russia affair.
There is no downside for Democrats and for conscientious Republicans in refusing to move forward with a permanent FBI director. For now, McCabe is doing the job. He’s the one person who we know Trump, Sessions and Rosenstein would have had no role in influencing. It’s not even clear the partisan Republicans will want a confirmation hearing for a new FBI director. This would devolve into a tutorial on obstruction of justice, queries about a White House taping system, a reaffirmation of the conclusion that Russia meddled in our election (which would contradict the president) and a critique of Trump’s alleged conversations with Comey.
The one measure that Congress does have within its power is appointment of a special commission or select committee, which would be within Congress’ domain. (The former would likely require legislation, which might need to be passed on a veto-proof majority.) They can do that now or in the future, depending on how well the Senate Intelligence Committee functions.
Where does that leave us? Perhaps the best arrangement would be to leave Rosenstein and McCabe in place and allow the Senate committee to continue its work on the Russia investigation. However, a separate investigation into the firing of Comey and potential obstruction of justice is essential. Both the president’s and the attorney general’s conduct must be examined. For that, Rosenstein must agree to appoint a special counsel (Rosenstein cannot investigate himself) and Congress should set up a select committee. That is the only feasible way to investigate whether Trump is guilty of either impeachable or illegal conduct.
Jennifer Rubin is a Washington Post columnist.