This posting I prepared for Lawfare on the Comey firing and the issues of legal process--and of respect for law--appears at-- http://www.lawfareblog.com/how-it-was-done-problem-not-only-trump-fired-comey-how-he-did-it

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In the critical response to the President’s firing of Jim Comey, much of the commentary has centered on the action itself, its motives and its potential effects.  Noah Feldman writes in Bloomberg that the President’s termination of the FBI Director was within his lawful authority, but that it breached a norm that secures the necessary measure of independence for law enforcement. He sees the crisis not so much as a constitutional crisis, as one of law, and no less serious for that. Here, on Lawfare,  Benjamin Wittes and Susan Hennessey have similarly called attention to the threat to the integrity of the Russia inquiry. The emphasis is on what the President did and its implications for the rule of law.

The question of how the White House did this—the process followed and the explanation provided—tends to be of secondary concern in the analysis so far. The “how” issues are seen mainly as examples of botched political judgment or public communications strategy, or as clues to the real motives behind the action. This is a mistake. How Mr. Trump went about this firing has implications as profound as the action itself for the rule of law in his Administration.

The termination judged on its merits raises important questions, which the administration must answer, but this line of inquiry is complicated. After all, the President, as Feldman notes, has the authority to fire Mr. Comey, and some have argued that the Director may have exhausted his controversial tenure at the Bureau. Mr. Trump was quick in a late-night tweet to remind his audience that the Democratic Senate leadership had declared that Comey no longer had their confidence. Democrats and some in the press have understandably scorned the Administration’s opportunistic embrace of criticisms of Mr. Comey’s handling of the Clinton email investigation: They note that Mr. Trump had taken (and tweeted) flatly contrary positions on the campaign trail. But it seems odd to demand that the administration stay close to the positions the President staked out, in tweets and otherwise, as a candidate. Many hope, fervently, for better.

So a fair question is whether the issue of actual or perceived self-interest have made it impossible for Mr. Trump to have removed Mr. Comey at any time—or just until the conclusion of the Russia investigation? Assume that Mr. Trump had not fired Comey yesterday and that the Department of Justice’s Inspector General, now examining the Director’s handling of the Clinton email matter, issued a report finding that Mr. Comey had violated Department policies or norms. Could the President have dismissed him then?

The reason for putting the question this way is to shift the focus of inquiry from the “what Trump did” to the “how Trump did it” of the firing. This shift does not diminish the significance of the action for the rule of law. It brings out the importance of the “how” question for just this concern.

The are the reasons I have given in an op-ed for The Washington Post for separating the position of the United States from the defense of President Trump in the pending Emoluments suit.

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President Trump has been sued for violating the constitution’s Emoluments Clause, which raises the question: who should represent him? As it stands now, because the president has been sued in his official capacity, the Department of Justice will appear for the defense on behalf of the United States. But in an unprecedented case involving the president’s extensive private business interests and its management through a controversial “trust” arrangement, that is the wrong choice.

Instead, the president should be required to retain his own private counsel to represent him. The Justice Department should express its view separately but also independently of the Department’s senior appointed leadership . This arrangement would make it more likely that Justice will advance a constitutional position in the broader public interest, not just in the narrow service of the president who happens to be in office at the moment.

The Wallace Global Fund fired Morgan Lewis for advising Donald Trump on the mechanisms for controlling conflict of interest. It scorned the firm’s legal analysis and its dismissal of counsel was meant to keep the Fund from being “complicit” in the President’s disregard of legal and ethical norms. The Fund has concluded that the president’s actions are, on the ethical merits, clearly indefensible--case closed. So the Fund deems the lawyers culpable for putting their names and reputations behind what it has concluded is beyond the pale.

There is a different way of looking at what may exceptional about the Trump ethics regime, and it does not require agreement on specific violations of ethical obligations, or arguments about the viability of specific legal theories, or the questioning of the professional standards followed by law firms or lawyers. It is more concerned with a change, for the worse, in the institutional safeguards for keeping government service under public ethical controls. The problem could be thought of as a sort of privatization of public ethics.

This privatizing element has been introduced through certain features of the Trump business interests, and even more, the issues presented by the family members that the President would like to have by his side. Some special arrangement is generally thought necessary to allow the president to have the counsel and company of his daughter and son in-law. They will take unpaid positions within the White House, but in form, as recently announced, they will be treated as employees subject to conflict of interest rules that apply to all others.

Both Mr. Kushner and Ms. Trump have complex continuing interests in their businesses, and they argue that there is no fair or practical way to dispose of many of them. They will maintain and retain enough connection to their business to monitor, with the advice of counsel, potential problems that may arise. A similar mechanism was established by the president to administer his “trust,” run by his sons, and advised by a special ethics counsel selected from private practice. His trust also has added a compliance adviser, a long time lawyer and official in the Trump business.

All of this occurs “in the family,” and this is largely how it is reported. But it does not have to end there in future administrations. Another president may feel free to appoint “volunteer” senior White House advisers without family ties but with similarly far-flung and complex business interests. Paid their dollar a year, they would maintain much of their financial interests, perhaps excluding the simplest conflicts presented by easily disposable stock holdings. They would also set up with their lawyers a private arrangement for the management of any conflicts.

Congress, the Office of Government Ethics, and the White House have been lobbing views back and forth on whether the White House is subject to executive branch-wide ethics standards. It all started with the White House Counsel’s response to Kellyanne Conway’s exhortation to the public to” go buy” Ivanka Trump-branded line of products.

This Administration’s complex--and in the perspective of critics, troubling--position on core ethics issues would seem to make it especially important for the resolution of a case like Conway’s to go smoothly. The President has to show that he can successfully deal with the conflicts presented by his and his family's business interests. He faces deep doubts about the structure set up for this purpose, which includes control of his interests put in the hands of his own children, one of whom recently declared that the Trump brand is “the hottest it has ever been.” Then there is the ambiguous if not dubious trail of statements from the Administration about how Mr. Trump understands ethical constraints. Early on, the President said he had been advised that he was free of any limits under federal conflict of interest regulation, while his Chief of State averred that every step would be taken to avoid any “undue influence” of business interests over the Administration’s policies and actions. And the President has not kept his executive duties apart from his commercial interests, just this last weekend holding meetings at the Trump National Golf Club in Virginia.

So all who are involved in settling or overseeing the conclusion to the Conway episode-- the White House, OGE and the Congress--have had special obligations to be clear about the issue and the reasons for the disposition. The public would then learn something about the ethics Standards and rules, about how the Administration will approach their interpretation and enforcement, and about whether there are holes to be filled or procedures to be tightened.

So how has it gone? Not especially well, except for the response from one senior Member of Congress, Elijah Cummings, who has raised the key questions that now have to be answered.

President Trump has more detail to provide on what he means by a “major investigation” into voter fraud. Already, however, he has drawn sharp objections to his preoccupation with illegal voting, including from within his own party and the National Association of Secretaries of State, on the basis that there is no evidence to support his claim. His own press secretary seems to have retreated to the position that "he [the president] believes what he believes."

But it cannot be lost in this debate that the President is taking an extraordinary step with the contrivance of some sort of “investigation,” whatever the form takes. He is moving, openly and aggressively and within days of his inauguration, to use his public office to advance his personal political interests as a candidate for office. One such interest, apparently, is to contest the popular vote count of the 2016 general election--his election. The second, it is fair to assume, is to do everything necessary to establish the fraud he is convinced is rampant and push for measures he deems helpful to his next election campaign.

The first of these objectives is quirky. It is not the usual course of events that a candidate challenges the outcome of an election that he won. But it is still his own election and he intends now, as President, to put the 2016 popular vote margin in question for his own political benefit, to satisfy--as he sees it--a political need.

The second of these interests is his own reelection. Until we learn otherwise, Mr. Trump will be a candidate for re-election in 2020. Now, as president, he intends to order up some investigation with implications for this candidacy. Critical commentators have touched on this concern to some degree, warning that this investigation might be intended to feed into the broader GOP initiative on voter ID and other restrictions on the franchise. The investigation would serve to spur proposals for further additional restrictions that, while unwarranted as policy but designed to burden voters, could discourage or impede voting primarily in communities with high Democratic support. This is a possible, perhaps even a likely, outcome, and it both deeply objectionable and sure to spark a new round of voting rights litigation. But the context in which the President has raised the issue is not his party’s programmatic attention to voter fraud, but his election, the 2016 election, and his conviction that it cost him millions of votes.