Former Ky. Prosecutor: Comey Firing 'Fundamentally Altered The Equation'

May 17, 2017

The former leading federal prosecutor for the Eastern District of Kentucky says President Donald Trump's sudden dismissal of former FBI Director James Comey convinced him to join the chorus calling for a special investigation.

Kerry Harvey stepped down from the U.S. Attorney post in January, but the deluge of breaking news out of Washington has the Obama appointee weighing in again. Harvey says Comey's termination "fundamentally altered the equation in a couple of ways."

The former prosecutor describes the ousted FBI head as a known quantity with a reputation as a "straight shooter," whose absence will make it difficult for the ongoing investigation into the Trump campaign's possible ties to Russia to inspire much confidence in the court of public opinion.

A friend and supporter of Deputy Attorney General Rod Rosenstein, Harvey nevertheless expresses doubts that his colleague could produce a Department of Justice review that's perceived as independent in the current political climate – and the same goes for President Trump's future nominee to head the agency.

Enter a special prosecutor.

"If we're going to have an investigation that has the support, ultimately when it's concluded, of the American people, that's almost necessary at this point," Harvey argues, adding there are good people who are up to the job.

Without it, he worries the Trump-Russia investigation will become a permanent "political football" and do lasting damage to FBI credibility. On the latter issue, he says a history lesson is in order.

"If you go back to the Watergate era and the pre-Watergate era, all too often the FBI was used a political weapon against political adversaries. After Watergate, we made significant reforms and the consequence of that is that the FBI now is one of our governmental institutions that does enjoy a high degree of public confidence, and we simply can't afford to erode that," Harvey says.

But some commentators wonder whether demands for a narrowly-tailored inquiry into criminal conduct might backfire.

David Frum writes in The Atlantic that a special prosecutor "could wrap the investigation of the Trump-Russia matter in secrecy for months and years—and ultimately fail to answer any of the important questions demanding answers." In the piece, Frum lobbies for a select committee of Congress or an independent commission.

Harvey acknowledges it as a legitimate concern, but notes that some level of confidentiality may be necessary to secure the truth.

"The public heat that surrounds this investigation now, I can tell you, is not healthy for the investigation," he adds.

So far, Senate Majority Leader Mitch McConnell has resisted demands for a special prosecutor, saying another investigation would only impede the current inquiries.

Attention has since migrated to a Comey memo, first reported on by the New York Times, that suggests Trump attempted to quash the FBI’s investigation into former National Security Advisor Michael Flynn, who was fired in February over questions about his contacts with Moscow ambassador Sergey Kislyak. The White House has denied the version of events in the memo. 

The latest twists come on the heels of another development Harvey says raises red flags.

The former top prosecutor says President Trump’s reported sharing of sensitive intelligence with the Russians may have been within his purview, but the episode – and the president’s subsequent statements – warrant pause.

Although he suspects the commander-in-chief acted inside the law in declassifying material, Harvey says: "I think that's the wrong question. The question is the wisdom of doing so. And I certainly have no expertise in that, but when you see the national security experts really from all across the political spectrum expressing grave concern about this circumstance, it causes one to be a little worried."

On a more familiar front for Harvey, who spent much of his 7-year tenure combating the opioid trade in Kentucky, Attorney General Jeff Sessions announced changes in sentencing guidelines Friday. In a one-and-a-half page memo, Sessions instructed federal prosecutors to pursue the most serious, readily provable offenses, promising the policy will “un-handcuff” local prosecutors.

Any push to crack down on high-level dealers gets no argument from Harvey, but he hesitates to endorse the strategy. He says it might make more sense – if resources were unlimited.

"There's only so agents, so many prison beds, and so many prosecutors," he says. "As I understand it, that last administration proposal, it's to cut the budget of the Department of Justice. So that means if you're prosecuting more lower level non-violent drug offenders and you're prosecuting them harder, then you have less resources to go after the people who are really causing the damage."

Harvey served as the U.S. Attorney for the Eastern District of Kentucky from 2010 through January 2017. In an exit interview with WUKY, he described opioids as the "single biggest problem" facing the commonwealth.