President Trump’s decision to fire FBI Director James Comey has (rightfully) drawn a fair amount of concern on this blog, Lawfare, and Just Security (with many blog entries on each site devoted to the topic). Comey’s firing has also drawn concern from other sources. Over the weekend former Director of Intelligence James Clapper stated that our institutions are under assault from the President. If you haven’t read the reactions from David Frum or Jeffrey Toobin, I’d encourage you to do so.
A fair amount of what’s been written has (rightfully) focused on one particular locus of concern—namely, the (very real) possibility that President Trump fired Comey because of Comey’s investigation into Russia-related wrongdoing. Deputy Press Secretary Sarah Huckabee Sanders stated that the President fired the Comey in order to bring the investigation into Russia-related wrongdoing to a close. The President himself implied the same during a television interview with Lester Holt. And there are reports that Trump asked Comey to pledge some kind of loyalty to Trump, and Comey refused.
The President’s decision to fire Comey to stop the investigation into potential Russia-related wrongdoing by the President and his circle raises serious rule-of-law concerns. Particularly if there’s anything to cover up with respect to Russia-related wrongdoing, Trump’s decision to fire Comey is a major affront to a core tenet of our system of government—the rule of law, which maintains that no one (including the President and his affiliates) is above the law. But even if there’s nothing to cover up, President Trump’s decision to fire Comey in order to bring the investigation into Russia-related wrongdoing should be troubling for the rule of law. As Richard Primus explained, “to act as the judge in one’s own case … is exactly what it means to place oneself above the law.”
Thus far, that has been the primary concern about the Comey affair—the troubling rule-of-law aspects of the President firing the person in charge of investigating the President and his supporters. Less attention has been paid to another possibility that would also raise serious rule of law concerns –the possibility that Trump fired Comey because Comey was not investigating Trump’s enemies aggressively enough for Trump’s liking.
During the campaign, President Trump frequently called for his opponent, Hillary Clinton, to be locked up. (“Lock Her Up!” was a frequent refrain at his rallies, and it has been repeated at Trump rallies after the election and after the inauguration.) In Trump’s interview with Lester Holt, Trump repeated the claim that Comey should have continued a criminal investigation into Hillary Clinton and brought criminal charges against her. (That statement is another indication of the lack of credibility to the initial, official statement, which suggested Comey had been fired because he was too critical of Hillary Clinton during the election cycle.) Along similar lines, some reporting into Trump’s decision to fire Comey suggested that Trump may have fired Comey in part because Comey would not confirm Trump’s (baseless) accusation that President Obama illegally wiretapped Trump during the campaign.
These reasons are a little bit different than firing Comey because of his investigation into Russia-related wrongdoing by Trump’s friends. Rather, these reasons reflect a concern that Comey would not leverage the full investigative powers, police powers, and authoritative voice of the FBI against Trump’s enemies.
These concerns are, however, just as troubling for the rule of law. It is a reality that the breadth of criminal law, including federal criminal law, is vast—there are countless federal criminal statutes that prohibit wide swaths of conduct. And even if someone is not ultimately guilty of violating a criminal statute, a public FBI accusation and FBI investigation into potential wrongdoing (to say nothing of charges that eventually result in an acquittal) can be equally devastating. Writing about the domestic law apparatus in the United States, Benjamin Wittes explained:
Let me be blunt: …. The soft spot, the least tyrant-proof part of the government, is the U.S. Department of Justice and the larger law enforcement and regulatory apparatus of the United States government. … Don't believe me on this one; ask Justice Robert Jackson, who knew something about the Justice Department, which he headed as attorney general before ascending to the court:
Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints ….
Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.
A prosecutor—and by extention, a tyrant president who directs that prosecutor—can harass or target almost anyone, and he can often do so without violating any law. He doesn't actually need to indict the person, though that can be fun. He needs only open an investigation; that alone can be ruinous. The standards for doing so, criminal predication, are not high.
(Conor Friedersdorf recalled this old Wittes post in a recent Atlantic piece.)
Writing about the Comey firing, Zach Price emphasized that one of the key norms of prosecutorial power in the United States is that we do not want prosecutors “to weaponize criminal justice by pursuing technical violations against partisan enemies for political gain.” Price, however, stated that Trump’s firing of Comey “egregiously violated” another norm—“the norm against self-dealing.”
But Price also recognized that the Comey firing “threatens …. the norm against politically motivated prosecution.” I think that’s right, and that possiblity is just as concerning as Trump firing Comey to insulate himself and his friends from investigation.