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.
The Trump Executive Order and IRS Politics
President Trump’s Executive Order to relieve religious organizations of regulatory limits on their political activities came and went with little stir. It was widely seem to be lacking in content. David French, writing in The National Review, was harsher, pronouncing it "worse than useless."
Aimed at the Johnson Amendment, the Order directs the Secretary of the Treasury not to take "any adverse action" against a 501(c) organization speaking on political issues "from a religious perspective." But commentators correctly observed that an Executive Order cannot undo a statute, and that the Order confines its directives to actions by the Secretary "to the extent permitted by law" or "consistent with law." Translated into its simplest terms, the Order requires the Secretary to do what he can if the law allows it, and because the law in question is the Johnson Amendment, then the President has, in effect, demanded that the Secretary ease restrictions “to the extent permitted” by the Johnson Amendment. This is an unusual way of taking on the Amendment.
But if we look beyond the murky conception behind the Order and its somewhat tortuous wording, and consider what it might mean in practice, then it seems more consequential--at least in the next four years.
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.
Disagreements about Speech Limits
Is there an exception to free speech if its purpose is to exclude from the conversation certain views or groups? Ulrich Baer and Ted Gup have written dueling commentaries on this question. Baer argues that campuses are right to deny a forum to speakers whose racist or misogynist message defines other voices as unworthy of participation in the debate. Gup answers that once the principle of free speech is abridged for any reason, the inevitable result is more power for those who have already have it, more danger for those who do not. The protection Baer believes he is extending to the marginalized and underprivileged will turn out to be the road to their further victimization. Gupta sees Baer as mistaken that an exception carved out for the most just or compassionate of reasons can be kept under control and not abused for baser purposes.
There is a strong echo of this argument in the conflicts over campaign finance regulation. Those who would like to see the imposition of tighter limits on campaign spending are often making a Baer-like argument, with a twist. They do not peg their point to the content of the paid message: It could be on any subject. But they believe that the capacity to spend heavily to promote one’s views is an act of domination over those who don’t have the resources to answer. The wealthy are establishing an exclusive forum for speech funded at that level: Only a few can participate. This is an affront to democratic self-governance. It is, to borrow Baer’s words, threatening to “equal access to pubic speech,” and limits serve to “ensure the conditions” of such speech.
So, seen through this perspective much like Baer’s, limits are justified. And, just as Baer argues, staunch campaign finance advocates have long maintained that speakers restricted in the use of one outlet for their views can always can turn to others. Those whose speech confronts limits are still free to hold their beliefs and express them, just not at liberty to spread them on whatever terms and in whatever ways they choose.
The Supreme Court in Buckley v. Valeo famously rejected the notion that the speech of some may be limited in order to lift up the speech of others. Gup goes farther, insisting that, even if speech limits are intended to have this leveling effect, they usually don’t. The historical record to which Gup appeals tends to show that well-intended speech restrictions end up working against the interests of the marginalized and underprivileged. Once limits on access to a forum may be set, choices of who may spend, and how much, must be made. Gup writes that“ the advocacy of a dynamic line between protected and unprotected speech grants a license to those in power to smother dissent of all sorts….”
The Supreme Court as “Electoral Prize”
It is difficult to follow Linda Greenhouse’s reasoning that the Court has been “broken” because it has been made into an electoral “prize.” Presidential candidates campaign on promises to support the nomination and confirmation of Justices who will move the Court’s jurisprudence in a desired direction. Why should they not? The Court does not decide only abstruse legal issues of interest primarily to learned commentators. If electoral competition necessarily features arguments about--to name a few-- reproductive rights, or voting rights, or the role of money in politics, then it will require candidates to take a stand on the Court. And in some elections, the issue will be right in the thick of the fight.
Donald Trump made as much as he could of the critical importance to Republicans of a Court molded in the image of the late Justice Scalia. Secretary Clinton told the Democratic Convention that: “We need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them. And we’ll pass a constitutional amendment to overturn Citizens United.” No one doubted that the election would be consequential for the Court. Voters were entitled to know how much of a priority each party attached to the issue and what the candidates would look for in their nominees. The parties and their candidates obliged--as they should have.
None of this excuses the Republican refusal to provide a hearing for and allow a vote on the Garland nomination. But it is mistake to confuse this escalation in the struggle over the Court with the larger point about the central importance in national political conflicts of the Court’s composition. The Senate has an obligation to attend to the procedures and norms consistent with institutional interests and its governing responsibility in the long run. One aspect of this obligation is managing and translating political pressures, not giving entirely into them, in order to preserve the capacity of the body to function as a creditable legislature. If Senator McConnell were to announce that the Senate majority will closely coordinate legislative priorities with the RNC and that the RNC Chair will attend, to this end, the weekly Senate Republican Caucus lunches, there would be an outcry.
The Garland maneuver is an abuse close to this in kind. The Republican Senate majority decided to shape a process---in effect, to invent one--to enable the party’s Presidential candidate to campaign on a pledge to nominate the appropriate successor to Scalia, and to turn the nomination into electoral prize. The Senate subordinated its “advice and consent” function to Republican electoral objectives. Never before had the Senate taken the position that a duly elected President in an election year had no call on the Senate to advise and consent on a Court nomination. As Robin Bradley Kar and Jason Mazzone have shown, the Senate has “transferred” to the next administration the power to nominate to fill a vacancy only when the president had assumed office on the death of a predecessor, or a nomination was made by one president after another had been elected but not yet taken the oath.