//  5/15/17  //  Latest Developments

Since President Trump fired FBI Director James Comey, there has been a deluge of legal writing, from insightful essays about the rule of law to technical analyses of whether Trump violated criminal statutes. Take Care hereby presents in a single post all of the legal commentary from our daily updates relating to the Comey firing and its aftermath. 

May 10, 2017

President Trump fired FBI Director James Comey, citing the recommendation of Attorney General Jeff Sessions and Deputy Attorney General Rod J. Rosenstein (NYTWSJThe Guardian).

  • Here are the news release, letters from President Trump and Attorney General Sessions, and a memorandum regarding the decision.
  • The Trump Administration maintained the decision stemmed from Comey’s handling of the probe into Hillary Clinton’s emails (WaPo).
  • Neil Kinkopf decried Trump's "fake transparency" in his reasons for firing Comey and calls for the appointment of a special counsel (Take Care).
  • Jason Harrow explained that Trump does possess the constitutional power to fire Comey (Take Care).
  • Noah Feldman warned of a crisis in American rule of law (Bloomberg).
  • David Frum cautioned, "This is not a drill" (Atlantic).
  • David Graham remarked upon the convenience of this decision vis-a-vis the Russia investigation (Atlantic).
  • Ben Wittes & Susan Hennessey described the terimination as a "stunning event" and a "profoundly dangerous thing" (Lawfare).
  • Lawfare also hosted an "emergency" podcast to discuss the Comey termination, and began collecting public statements by lawmakers.
  • David Post analyzed the firing and echoed calls for a special prosecutor (Volokh Conspiracy).
  • Phillip Bobbits noted "this paradox: the president’s alleged acceptance of a recommendation from the attorney general . . . that is almost certainly not itself based on that rationale" (Just Security).
  • John Cassidy decribed the firing as "a premeditated and terrifying attack on the American system of government" (New Yorker).
  • United to Protect Democracy issued a statement condemning the President's decision.
  • Several Republican Senators expressed concern about the firing (Axios).

May 11, 2017

More details emerge about President Trump’s decision to fire FBI Director James Comey (PoliticoNYTWaPoWSJ).

  • Comey had sought additional resources for the FBI’s Russia investigation prior to being fired (NYTWapo).
  • At Take Care, Niko Bowie argues that the firing was legal and demonstrates why an executive branch investigation is insufficient.
  • Joshua Matz explains that firing Comey undermined one of the government’s central arguments in the revised travel ban case (Take Care).
  • Also at Take Care, Zachary Price argues that the firing threatens the critical norm of apolitical law enforcement.
  • And Ian Samuel observes that congressional Republicans, the only actors immediately capable of policing the President, haven’t shown much interest (Take Care).
  • Marty Lederman highlighted a significant “omission” in Deputy Attorney General Rosenstein’s memo -- an affirmative recommendation to fire Comey (Just Security).
  • Ryan Goodman considered suggestions Comey’s firing may constitute obstruction of justice (Just Security).
  • Helen Murillo discussed the statutory elements of obstruction of justice and viable enforcement mechanisms (Lawfare).
  • Bobby Chesney reviewed a president’s power to appoint and remove the FBI Director (Lawfare).
  • Julian Sanchez offered thoughts on what the firing means for the Russia investigation going forward (Just Security).
  • Ken Gude argued that Rosenstein’s reputation now depends on his appointing a special counsel to oversee the Russia investigation (Just Security).
  • Bobby Chesney and Steve Vladeck discussed the firing on a special edition of the National Security Law Podcast (Lawfare).
  • Susan Hennessey and Quinta Jurecic examined whether Attorney General Jeff Sessions’s involvement in firing Comey violated his recusal pledge (Lawfare).
  • Bob Bauer argued that the manner in which Comey was fired has serious implications for the rule of law (Lawfare).
  • Anthony Romero of the ACLU called for a special prosecutor and the creation of a select committee to investigate the Trump campaign’s ties to Russia (ACLU).
  • At Slate, Dahlia Lithwick argued that the legality of the President’s decision is less important than whether the decision was “normal versus insane.”

MAY 12, 2017

President Trump contradicted his communications staff today when he said that he had made the decision to fire James Comey before meeting with Attorney General Sessions and Deputy AG Rosenstein on Monday (WaPo).

  • Clips of the NBC News interview are available here.
  • On Take Care, Aziz Huq posits that whether the action is legal or whether we are in a constitutional crisis may not be the relevant questions to ask to assess democratic decline.
  • ICYMI: Here is all of Take Care’s ongoing coverage of the Comey firing.
  • Steve Vladeck highlights the coming crisis over Comey’s successor, noting that the names floated so far raise concerns about independence from the White House (Just Security).
  • Paul Rosenzweig argues that Rosenstein’s memorandum was strangely inadequate and offered an outline of what a more adequate memorandum from Rosenstein might have entailed (Lawfare).
  • Kate Brannen offers a Q&A on the Comey firing, Russia investigation, and more (Just Security).
  • Eric Posner pens a “very reluctant” defense of the firing (Eric Posner).
  • Michael Gerson writes that the president’s pick for the next FBI director could trigger a constitutional crisis (WaPo).
  • David Stewart analogizes the firing to President Andrew Johnson’s firing of Edwin Stanton, a move that led to Johnson’s impeachment in the House of Representatives (WaPo).
  • The New York Times editorial board pens an open letter to Deputy AG Rosenstein, arguing that he bears significant burden for safeguarding American democracy and must appoint a special counsel to lead the Russia investigation.

Chairman of the House Committee on Government Oversight and Reform Jason Chaffetz requested an investigation into the episode by DOJ’s Inspector General Michael Horowitz (Politico).

  • You can read Chaffetz’s letter here.
  • Daphna Renan and David Pozen argue that by circumventing the IG’s ongoing investigation into Comey’s conduct during the 2016 campaign, the process by which Comey was fired raises similar professional concerns to those leveled against Comey (Lawfare).
  • Jack Goldsmith and Helen Murillo highlight key questions now that Horowitz and his Comey investigation are about to take center stage (Lawfare).

Acting FBI Director Andrew McCabe testified before Congress today, contradicting key White House claims (NYTWaPo).

  • The Washington Post has the full transcript here.
  • On Lawfare, Quinta Jurecic liveblogged the hearing and then offered highlights of the testimony.
  • One of the key White House claims McCabe refuted was that Comey had lost support at the FBI, an assertion the White House has offered no evidence for, explains Kate Brannen (Just Security).

May 15, 2017

News outlets continue to cover President Trump’s decision to fire former FBI Director James Comey. At Take Care, Leah Litman highlights the irregularity of the process by which Director Comey was fired, here and here.

  • Richard Primus points out that President Trump’s conduct is unacceptable, regardless of whether he is guilty of Russia-related wrongdoing. 
  • At the Washington Post, Amy B. Wang covers Comey’s weekend activities after being fired.
  • The Economist discusses whether President Trump’s actions were the result of incompetence or malicious intent. 

President Trump’s tweet Friday that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” ignited coverage scrutinizing the possibility that President Trump is taping his conversations (NYTWaPo). 

  • Devlin Barrett, Ellen Nakashima, and Sari Horwitz write that President Trump suggested the tapes may contain conversations where former Director Comey told the President he was not under investigation (WaPo). 
  • At Vanity Fair, Emma Stefansky notes that President Trump’s history of recording business calls suggests he may have continued the practice. 
  • Former employees of President Trump assert they saw him taping conversations, writes Alexandra Berzon (WSJ). 
  • The White House responded to coverage, stating President Trump’s tweet was not meant as a threat against former FBI Director James Comey (WSJ). 
  • However, Peter Baker and Michael D. Shear note the president and White House Press Secretary Sean Spicer have declined to say whether the president tapes his conversations (NYT). 
  • Amid the firestorm, President Trump threatened to cancel White House press briefings (NYT).
  • Members of Congress found it distressing that President Trump might be taping conversations and agreed that if President Trump has tapes, he needs to hand them over to Congress. (NYTWaPo). 
  • House Judiciary Committee Ranking Member John Conyers and House Committee on Oversight and Government Reform Ranking Member Elijah Cummings requested copies of the alleged recordings from White House Counsel Don McGahn (Lawfare). 
  • Representatives Conyers and Cummings also sent a letter to Deputy Attorney General Rod Rosenstein requesting a report on Attorney General Sessions’ involvement in the firing of James Comey in light of Sessions’ prior commitment to recuse himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” (House Committee on Oversight & Government ReformLawfare). 
  • At Lawfare, Bob Bauer details the negative self-portrait President Trump is creating. Earlier, Bauer explored whether the president has made himself the target of an obstruction of justice investigation (Lawfare). 

A number of commentators discuss whether President Trump can be investigated for obstruction of justice due to Director Comey’s firing. 

  • At the Washington Post, Karen Tumulty observes that much of this discussion is based on President Trump’s own words. 
  • Jed Shugerman wonders if President Trump admitted to obstruction of justice in an interview with Lester Holt of NBC. 
  • Jennifer Rubin argues that the Friday comments of James Clapper, former director of national intelligence, constitute a third strike against President Trump (after President Trump’s alleged he fired Director Comey with the Russia investigation in mind and then tweeted about potential recordings of his conversations), and that action must be taken before President Trump does too much damage to the republic (WaPo). 
  • Nicholas Kristof asserts that while President Trump’s pattern of behavior may not meet legal criteria for the crime of obstruction of justice, President Trump has engaged in obstruction of the rule of law and democratic norms (NYT). 

Laurence H. Tribe advocates for Congress to launch an impeachment investigation into President Trump (WaPo).

  • Josh Blackman responds, arguing that we are not in the midst of a constitutional crisis. 

 Other coverage centered around who might replace Director Comey, and what such an appointment might mean. 

  • Matt Zapotosky and Ed O’Keefe write that there is a four-person shortlist, including Sen. John Cornyn (Tex.), Acting FBI Director Andrew McCabe, Alice Fisher (a white-collar defense lawyer who previously led the criminal division at the Department of Justice), and Michael J. Garcia (a judge on the New York State Court of Appeals and former U.S. Attorney for the Southern District of New York) (WaPo). 
  • Maggie Haberman and Jeremy W. Peters add that the list of those being considered is said to be broader than those four names (NYT). 
  • At the Volokh Conspiracy, Eugene Volokh argues that we can’t assess the Comey firing until we know whom Trump nominates as the new Director. 

John Podesta argues the only way to save our democracy is for all of President Trump’s senior advisors to resign (WaPo). 

  • At the Washington Post, Phil Rucker agrees the system may be failing, but points out that President Trump is making all the relevant decisions. 
  • Sen. Dianne Feinstein also called for the appointment of a special prosecutor (The Hill). 
  • President Trump is threatening the FBI’s independence, argues Barbara McQuade, a law professor at the University of Michigan Law School and the former U.S. Attorney for the Eastern District of Michigan; she is also calling for the appointment of a special prosecutor (WaPo). 
  • In contrast, Secretary of State Tillerson declared in a Sunday interview that he was not concerned President Trump would threaten his independence in his job (WSJ). 
  • Jennifer Daskal agrees a special prosecutor must be appointed, in large part because of the possibility of obstruction of justice charges (Just Security).  
  • The Economist states an independent inquiry into what happened during the election is the only way to clear the air in the U.S. 

At the New York Times, Benjamin Wittes describes what will be lost with the firing of James Comey. Benjamin Wittes also argues in Lawfare that Deputy Attorney General Rod Rosenstein should resign. 

Kathleen Clark, a law professor at Washington University, writes that it creates a conflict of interest for presidents to ask the head of the FBI about an investigation into that president’s electoral campaign (WaPo). 

At Lawfare, Molly E. Reynolds documents the procedural methods Democrats in Congress can use to respond to the firing of James Comey. 

  • Adam Jentleson urges Democrats in Congress to not allow business to proceed as usual, but rather to focus on holding President Trump accountable (WaPo). 

Garrett Epps argues that Merrick Garland could serve as the next FBI director without giving up his position as a federal judge (The Atlantic). 

  • Josh Blackman, cited in Epps’ piece, further discusses the source of the President’s power to remove the FBI Director at Josh Blackman’s Blog
  • At Just Security, Jennifer Daskal implores President Trump to not remove Andrew McCabe as the acting director of the FBI for contradicting White House statements during his Senate testimony. 

David G. Post notes similarities between the actions of President Trump and the actions of President Nixon (WaPo).

 


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