//  5/10/17  //  Commentary

There is much we don’t yet know about President Donald Trump’s remarkable decision last night to fire FBI director James Comey. I’ll wait for the work of journalists and, hopefully, an independent investigation before reaching any conclusions about whether the surprise announcement is as politically worrisome as the Watergate-era Saturday Night Massacre. But already legislators are suggesting that the firing was illegal—or, in the words of Senator Richard Durbin, that it raises “grave constitutional issues.”

It doesn’t. And that’s the problem with relying on the executive branch to investigate itself.

Starting with the basics, the president has clear constitutional authority to fire the FBI director. When the politically unimpeachable J. Edgar Hoover died in 1972 after serving as FBI director for nearly 48 years, Congress handicapped his successors. It converted the director position into an “individual appointment by the President, by and with the advice and consent of the Senate,” and said that “after June 1, 1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years.”

Although it’s possible to read this last clause as an oblique form of job protection—the FBI director “shall” serve ten years, no matter what the president thinks—the sentence is more notable for the words it’s missing. The typical language Congress uses to protect an executive officer from being fired is more direct; something like, “The President may remove the Director for inefficiency, neglect of duty, or malfeasance in office,” or, “An independent counsel appointed under this chapter may be removed from office . . . only for good cause.”

This typical directness isn’t just good drafting. It’s a constitutional requirement. The Supreme Court has long held that “as a constitutional principle the power of appointment carrie[s] with it the power of removal.” So when a statute gives the president power to appoint an officer, the default rule is that the president has the power to remove that officer too unless Congress includes “very clear and explicit language” to the contrary.

In ordinary presidential administrations, this rule makes a lot of sense. As readers of this blog know, the president has the constitutional duty to “take Care that the Laws be faithfully executed.” This duty could be compromised if the president lacked the power to ensure that his or her subordinates followed instructions.

And, indeed, in July 1993, President Bill Clinton fired the FBI director halfway through a 10-year term because of a harsh internal ethics report on the director’s conduct. As with President Trump, President Clinton said that he was acting on his attorney general’s recommendation that the director could “no longer effectively lead the bureau.”

Of course, the big difference between 1993 and 2017 is that when James Comey was fired he had announced that he was leading an investigation into possible links between the Trump campaign and the Russian government. Even if it’s ordinarily legal for a president to fire an FBI director, it’s never legal for a president to obstruct or impede the administration of justice.

But before anyone could bring the same obstruction-of-justice charges against President Trump that were leveled against President Richard Nixon in 1974 or President Clinton in 1998, they’d need evidence that President Trump acted “corruptly.” That term is defined as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”

As all the litigation with the president’s executive orders is showing, persuading a judge that a public official acted with an “improper purpose” can be incredibly difficult—even when the person literally tweets out improper explanations for his actions. The U.S. Attorney who yesterday issued subpoenas against Michael Flynn’s associates knows this better than anyone. Just last year, the Supreme Court unanimously vacated the attorney’s successful prosecution of former Virginia Governor Robert McDonnell after the Court interpreted the terms of a different corruption statute narrowly so as not to interfere with the normal political process.

In short, based on the limited information available, the president’s firing of James Comey doesn’t appear to raise grave constitutional issues or even grave statutory issues. Presidents fire subordinates all the time.

To be clear, there is likely plenty of information we don’t yet know, including information about the president’s true intentions in firing the FBI director. President Trump’s decision could turn out to be a cover up worse than any crime his campaign committed or may have committed.

But for now, what last night’s decision most proves is that it’s already too late in the day to trust the executive branch to police itself.

That lack of trust should extend to a special prosecutor, independent counsel, or whatever other nice terms you want to call it. If the president is willing to fire the director of the FBI, he’s likely willing to fire anyone under his command, including a “special counsel” appointed by—and subject to removal by—the attorney general.

(Not to mention that the “independent counsel” statute that protected Ken Starr’s investigation of President Clinton expired in 1999.)

Fortunately, there’s another path. As Susan Hennessy, Benjamin Wittes, and Julian Zelizer have persuasively argued elsewhere, Congress itself is in the best position to move forward on any future investigation of the Trump administration. Before President Nixon had a special prosecutor to fire, the Senate Select Committee on Presidential Campaign Activities—also known as the Watergate Committee—took the lead on investigating his administration’s connection to the Watergate burglary. That bipartisan committee, along with other select committees on Iran-Contra, Whitewater, and Hurricane Katrina, demonstrates there are times when only Congress has sufficient independence to credibly investigate the president.

For if there are any “grave constitutional issues” in the investigation of the Trump administration so far, it is Congress’s unwillingness to assert itself as a coequal branch. The president’s firing of the FBI director is a call for congressional action. As James Madison wrote in 1788, when one branch of government suffers from a “defect of better motives,” the other two are obliged “to control itself.”


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