Legal Process and the Comey Firing
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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.
A Question of Norms: DOJ Independence in a “New Political Order”
The Attorney General is often said to be the Cabinet officer whose responsibilities require a special degree of independence from presidential control. This is not new ground. Even President Washington envisioned the chief legal officer of the executive branch as a "skilled neutral expositor of the law.” Frederick A.O Schwarz and Aziz Z. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror 191 (2007). In more recent times, partly as a result of Bobby Kennedy’s service as Attorney General in his brother’s Administration, and then of the troubles that followed from Richard Nixon’s choice for that post of his law partner and campaign chair John Mitchell, the pressure on the AG to establish an acceptable level of independence within an Administration has intensified.
There remain practical and theoretical limits to that neutrality. The AG is answerable to the President and is required like other Cabinet officers to pay attention to presidential policy priorities. There are, however, careful judgments to be made: norms that survive in one form or another, from Administration to Administration, that help keep the federal law enforcement apparatus from being wholly annexed to the political purposes of the West Wing.
Whether these norms have been properly tended to and enforced is never going to be the subject of agreement. Each party out of power has reasons--and some times defensible reasons-- to question an Administration’s adherence to norms. This is healthy: it is one way that norms survive, because with whatever degree of sincerity, and whether on the offensive or in self-defense, everyone claims that they care about them. Norms depend vitally on the simple and repeated declaration that they exist and will be upheld. So it helps to reinforce, and enforce, the norms when Democrats complain about the deficient independence of a Republican AG, and Republicans take up the charge at the time of a Democratic Administration, and each stoutly stands behind the necessity of an appropriate measure of DOJ independence.
This all requires alertness to anything that could be new in an Administration’s articulation of the role of its AG. And what White House senior adviser Steve Bannon has had to say about the role of Senator Jeff Sessions appears to be new.