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At oral argument on Monday, Acting Solicitor General Jeff Wall put forward the best possible sounding defense of Executive Order 13780, the order barring entry into the United States by nationals of several Muslim-majority countries. Part of Wall’s defense was that the order, and the process leading to the order, deserve a “presumption of regularity.” Various commentators defending the entry ban have used this same argument to defend the entry ban’s legality.  (That defense is unpersuasive, for reasons explained here, here, here, or here, among others places.) 

More recently, a similar argument has been deployed by those who seek to portray as alarmist liberal hysteria any concern about President Trump’s sudden firing of FBI Director James Comey. On Tuesday, Trump unceremoniously dispatched Comey, the man conducting the investigation into the Trump campaign and its affiliates.  Many of Trump’s defenders immediately rushed to point out that Trump has the authority to fire the Director. 

But that’s not the point, of course. An abuse of authority, by definition, is an (impermissible) exercise of authority that a President possesses. And as Aziz Huq has explained on this blog, the decline of democratic norms often happens not by sudden breaks in legality, but by abusive exercises of otherwise legal authority.

More importantly, as Niko Bowie, Helen Klein Murillo, and others have explained, the important question is why Trump fired Comey. No one questions that the President has the constitutional authority to remove the FBI Director, so long as the President removes the Director for reasons other than the Director’s investigation into possible violations of law by the President, his campaign, or his affiliates.

That’s when the presumption of regularity makes an appearance.  Recognizing that Trump cannot fire the FBI Director to stymie an investigation into Trump’s affiliates, Trump’s defenders insist that his decision to fire Comey is entitled to a presumption of regularity—that is, they maintain we should presume that Trump fired Comey for legitimate reasons. (The administration has offered a buffet of what those reasons might be.  Many of their statements are conflicting, and none of the legitimate reasons why Trump might have fired Comey are particularly credible.)

The kicker, to my mind, is this: Because Trump’s decision to fire Comey is entitled to a presumption of regularity, the defenders imply, there is no reason to demand an investigation into why Trump fired Comey, whether the investigation is done by Congress (and I mean really done by Congress, which would require staffers and resources), or by an appointed prosecutor.  Nor is there a reason to press forward with a (real) continued investigation into Trump affiliates’ connections to Russia. 

To my mind, this invocation of the presumption of regularity does not understand how presumptions work.  A presumption is just that—a presumption; a presumption is not conclusive or definitive proof that something is true.  A presumption is also not outcome determinative where there are facts rebutting the presumption.

So just because presidential orders are entitled to a presumption of regularity, it does not follow that any particular decision was issued in the regular course.  In the case of Comey, a presumption that Presidents fire federal officials for legitimate reasons does not prove that the President fired Comey for legitimate reasons—that is, for reasons other than Comey’s investigation into Trump and his affiliates, or Comey’s failure to accuse or investigate Trump’s opponents. (Either of those reasons should be concerning.)

Look at it this way:  There is a presumption that federal statutes are constitutional. But some federal statutes are unconstitutional, and the presumption of constitutionality does not mean that federal courts cannot find that some statutes are unconstitutional. There is also a presumption that people charged with a crime are innocent.  But some of those individuals are guilty, and the presumption of innocence does not mean that an individual may not be convicted by juries.

Some of Trump’s defenders have made claims with the unsubtle implication (or sometimes explicit statement) that people who dare to question the legality of President Trump’s decisions, including the decision to fire Comey, are doing something wrong.  Trump’s defenders accuse those who question or criticize Trump of abandoning, or declining to apply a presumption of regularity to those decisions.   That’s wrong. Rather, the people who are questioning Trump firing Comey are considering whether the avalanche of facts that suggests something irregular happened rebuts the presumption of regularity of Presidential decisionmaking. And they have concluded it does. As Daniel Deacon and I explained, that’s how things work—courts and commentators take a general rule (here a presumption) and apply it to whatever the facts happen to be.

Consider some of the facts surrounding Trump firing Comey:

• Comey was in charge of the investigation into Trump affiliates’ connections to Russia.
• Sources have reported that Comey had recently requested more frequent updates about the investigation.
• Sources have also reported that Comey had requested more resources into the investigation.
• Trump did not like that Comey was talking about the Russia investigation.
• The letter firing Comey stated that Trump (and Sessions) thought Comey should be fired because Comey improperly informed the public that an investigation into Hillary Clinton’s emails was continuing. When Comey did that in October, candidate Trump celebrated it, as did then-Senator-now-Attorney-General Jeff Sessions.
• The administration has changed stories about why Comey was fired.  Some spokespeople indicated that Comey was fired because he lost the confidence of rank and file FBI members. The Acting Director of the FBI testified that Comey enjoys broad support within the FBI.
• The underlying memo prepared by Deputy Attorney General Rod Rosenstein, which Trump and Sessions invoked to justify firing Comey, does not recommend that Comey be fired.
• The Rosenstein memo departed from standard investigative and reporting procedures.  Rosenstein’s memo skirted the Office of the Inspector General.  The Rosenstein memo was also sourced with news reports rather than investigative details.
• Rosenstein started the job as Deputy AG two weeks before the date of the memo.  Rosenstein’s memo was dated the same day as Sessions’ recommendation to fire Comey, and the same day Trump fired Comey.
• Trump told Rosenstein to write a memo on Comey when they met at the White House, which was only a day before the memo was written and signed.
• Trump fired Comey while Comey was away, and had Trump’s personal bodyguard deliver the message.
• Sources have reported that Trump ordered his subordinates to find a reason to fire Comey.
• Sources have reported that Trump did not like that Comey would not confirm Trump’s (baseless) claim that the Obama administration had wiretapped Trump.
• Sources have reported that Trump did not like that Comey would not express his loyalty to Trump, and would not share his congressional testimony with the administration in advance.
• Trump has stated he was going to fire Comey regardless of what any memo said about Comey.
• A White House spokesperson said Comey’s dismissal would help bring about the end of the Comey investigation.

During the campaign, Trump infamously said that he could shoot someone on Fifth Avenue and it wouldn’t cost him any votes. I’d pose the question a little bit differently:  What would Trump have to do for these commentators to acknowledge that maybe, just maybe, things look a little bit irregular, and that a particular Trump action should maybe, just maybe, no longer be presumed regular. If Trump stood on the White House lawn, announced a decision, fired off some glitter-filled cannons, and strung out a banner that said: “THIS DECISION AND THE PROCESS THAT LED TO IT ARE A BIT IRREGULAR” that would probably suffice.  But the Comey affair raises the question of what, short of that, would as well.

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Rule of Law Other Conflicts Judiciary Congress Executive Branch Removal from Office Russian Interference

 

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