Part of the Trump administration's rationale for firing former FBI Director James Comey was his failure to follow the "well-established process" for handling the Hillary Clinton email investigation in light of then-Attorney General Loretta Lynch's decision to distance herself from the probe.
But the Justice Department won't say what the process should have been.
Deputy Attorney General Rod Rosenstein spelled out the problem in a memo that the Trump White House used to justify Comey's termination. That memo asserted that Comey usurped the attorney general's authority, and essentially decided on his own not to seek charges against Clinton for using a private, non-secure email system to view and discuss confidential information.
The memo said that decision of Comey's was a major problem. "There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General," it said:
The director was wrong to usurp the Attorney General's authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution. It is not the function of the Director to make such an announcement. At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors. The Director now defends his decision by asserting that he believed attorney General Loretta Lynch had a conflict. But the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General.
However, the Justice Department is refusing to speculate on what the process would have been. Media officials with the Justice Department told the Washington Examiner that it would be inappropriate to respond to hypotheticals.
Still, administration officials seem to be clear that Comey went around the proper chain of command structure, even if they are not saying what the appropriate next step should be.
In the White House briefing on Wednesday, spokeswoman Sarah Sanders equated Comey's actions to taking "a stick of dynamite and throw[ing] it into the Department of Justice by going around the chain of command when he decided to take steps without talking to the Attorney General or the Deputy Attorney General…"
At the end of the Obama administration, Lynch said she would accept whatever decision Comey makes about the email probe, a move that was portrayed as something short of a formal recusal from the case. She made that call after meeting briefly with former President Bill Clinton, which led to complaints that their meeting had the appearance of a possible conflict of interest, given that Lynch was in line to decide how to handle the Clinton email investigation.
Then, last July, Comey delivered an unusual press conference in which he seemed to close the case himself. Comey said that in his judgment, "no reasonable prosecutor would bring such a case" against Clinton. He said successful cases hinge on findings of "intentional and willful mishandling of classified information," the exposure of a large quantity of classified information, "indications of disloyalty to the United States," or attempts to obstruct justice.
"We do not see those things here," he said.
But the Trump administration's Justice Department has not identified who in the Obama Justice Department was in a position to take over decisions about prosecuting Clinton or members of her team, or what process was available to sort out those questions at the time.
In the meantime, the Trump administration's Justice Department is facing its own questions about proper procedure. Democrats are claiming Attorney General Jeff Sessions' involvement in Comey's firing may have violated his previous pledge to recuse himself from any investigations that dealt with the 2016 elections.