James Comey, the former FBI director who has emerged as a critic of President Trump since his firing, writes in his new book that the commander in chief should not be prosecuted after leaving the White House despite any evidence against him.
Comey wrote that President-elect Joe Biden’s attorney general should not “pursue a criminal investigation of Donald Trump,” according to an excerpt obtained by The Guardian.
The Justice Department should not probe the outgoing president “no matter how compelling the roadmap left” by former special counsel Robert Mueller or “how powerful the evidence strewn across his history of porn stars and financial fraud,” according to Comey.
“Although those cases might be righteous in a vacuum,” he wrote, “the mission of the next attorney general must be fostering the trust of the American people.”
The stance is surprising coming from the former FBI director, whose abrupt firing in May 2017 served as the catalyst behind the Mueller investigation into Russian election interference and possible Trump campaign contacts with Russia.
Mueller said he did not reach a conclusion on whether Trump committed obstruction of justice, though Attorney General William Barr later said he and then-Deputy Attorney General Rod Rosenstein reviewed evidence laid out in the report and found it insufficient to accuse the president of obstructing the probe.
Trump has reportedly considered pre-emptively pardoning himself and members of his family to block any potential prosecution after he leaves the Oval Office on Jan. 20. However, it is unclear whether courts would interpret a blanket self-pardon by a president as constitutional.
In his book, Comey reportedly pointed to a 1915 Supreme Court ruling that says a presidential pardon amounts to a confession of guilt.
When President Nixon was considering a self-pardon in the aftermath of the Watergate scandal in 1974, the Justice Department issued a memo finding that it would be unconstitutional. Nixon was ultimately pardoned by President Ford, though he was never charged for his role in Watergate.
Comey wrote in his book that he doubts whether Trump should be pardoned by his successor.
“By pardoning a resigned president, Ford had held [Nixon] accountable in a way that Trump would not be, even where he to be pardoned after losing re-election. That might not be enough accountability in Trump’s case. Or it may be, especially if local prosecutors in New York charge Trump for a legacy of financial fraud.”
Trump’s pardon power applies only to federal crimes, not state crimes. The president is still facing an investigation from the Manhattan District Attorney’s Office.
The probe, which began in 2018 to look into alleged payments given to two women who claimed to have had affairs with Trump, has now expanded to include potential wrongdoings by Trump’s larger businesses activities.
Prosecutors have suggested in court filings that Trump and his businesses could be investigated for tax and insurance fraud.
“Whether or not our next president pardons Donald Trump, and whether or not the Department of Justice pursues him, the American people should be told why,” Comey wrote in a call for transparency.
His new book, “Saving Justice: Truth, Transparency and Trust,” will be published on Jan. 12. Comey described it as a book for “ordinary citizens, not legal experts or historians.”
Comey’s “A Higher Loyalty” was released in April 2018 and was turned into a two-part HBO film last year titled “The Comey Rule,” starring Jeff Daniels as the then-FBI director and Brendan Gleeson as Trump.