//  5/12/17  //  Commentary

Shortly after President Trump fired FBI Director James Comey, Adrian Vermeule pointed out that Trump’s decision, even if motivated by Trump’s desire to stop Comey from continuing to conduct an investigation into Trump’s ties to Russia, would be consistent with Trump’s innocence in that matter as well as with his guilt.  The guilt scenario is easy to imagine.  If Trump has colluded with Russian partners in impermissible ways, he would have had a clear incentive to fire the man who was in charge of an organization investigating the matter.  But, Vermeule points out, there is also an innocence scenario that makes sense of the data.  If Trump knows that he is innocent of Russia-related wrongdoing, and if Comey refuses to drop the matter, then Trump might fire Comey as a way of putting an end to an unwarranted investigation.  Indeed, if Trump knows himself to be innocent and suspects that Comey knows it too, he might conclude that an investigation was not just unwarranted but also illicitly motivated.  Firing Comey might then seem like the way to put matters right.

I’ve long regarded Vermeule as an unusually intelligent and systematic thinker, and I think he is right that Trump’s firing Comey to stop a Russia investigation would be consistent with the innocence scenario he describes.  That’s not to say that I think such an innocence scenario is likely.  But the point of this post is not to try to assign relative probabilities to the two scenarios.  It is to point out that Trump’s conduct would be unacceptable either way.

To fire the official who is investigating me on the ground that I know myself to be innocent is to make myself the judge in my own case.   No, Trump wasn't executing the official role of a judge when he fired Comey: he was deploying executive power at an investigatory stage rather than rendering an acquittal at the stage of final adjudication.  But that distinction doesn't make much difference here.  Why, after all, is the idea that no person should be the judge in his or her own case fundamental and long-standing within the common law, as well as in American constitutionalism?  Because one might err in judging one’s own guilt or innocence, especially given the strong incentives to come out one way.  Because letting someone be the judge in his own case invites his corruption.  Because when a person is the judge in his own case, it is hard for others to believe the adjudicative process has integrity.  All these problems are the same when I fire the investigator on the ground that I know myself to be innocent as when I acquit myself in court on the same ground.  And they certainly apply to the Comey scenario.  Maybe Trump really does think he’s innocent, but if so he might be deluding himself.  Maybe Trump really is innocent, but it’s nearly impossible for people who aren’t already unshakably committed to the proposition that he’s innocent to be persuaded he’s innocent if he gets to choose to shut down the investigation.  Just by the way, it’s also possible that Trump is guilty and knows it perfectly well.  But even if he truly believes himself innocent, he can’t exercise his powers for the purposes of shutting down an investigation into himself without making himself the judge in his own case in precisely the way that our rule-of-law system abhors.  

Elsewhere, and in a more general way, Vermeule has argued that the idea that a person may not be the judge in his own case isn't really a categorical principle that obtains throughout our legal system.  Instead, he says, it is an idea whose force must be weighed from context to context, depending on the particular circumstances.  I think Vermeule says some valuable things on this topic, though I’m not persuaded by everything he argues.  For present purposes, though, what matters is not the merit of Vermeule’s overall view of that subject but merely whether his view commits him to a position on the self-dealing problem in the particular circumstances here at issue: that is, whether an official would act permissibly or wrongfully by firing a subordinate as a means of trying to terminate an investigation of himself.  Vermuele does not address that case squarely, and I think that the best reading of his work suggests that he would think such behavior wrongful--which is not to deny that a reasonable reader might read his work and reach the opposite conclusion.  So while recognizing that Vermeule might think it acceptable for an official to try to terminate an investigation against himself, I do not think he is committed to that view.  

So as far as I know, then, Vermeule has written nothing contradicts the point I'm making.  When he argues that Trump’s innocence might have motivated him to fire Comey, he need not be endorsing the view that Trump’s innocence would make his decision to fire Comey acceptable.  And in my own comfortably held view, an official who fires a subordinate in the hopes of terminating an investigation into himself acts wrongly.  The wrong sounds in the same register as the formula that no person should be a judge in his own case.  It seems worthwhile, in the current conversation, to make that point explicit.   

Colluding with America’s foreign adversaries should disqualify a person for public office, and so should disregard for core principles of the rule of law.  For an American to have to write the preceding sentence at all is bizarre.  It’s not in the least surprising, given events of the past year.  But it’s bizarre nonetheless.

This post is cross-posted at Balkinization.


Are We All Textualists Now?

12/5/18  //  Commentary

Trump's executive order closing the government today out of respect to George H.W. Bush violates the plain text of a federal statute. If we really were all textualists now, that would be taken seriously.

Neil J. Kinkopf

George State University College of Law

Versus Trump: Versus Whitaker (JH solo)

11/15/18  //  Uncategorized

On this week's episode of Versus Trump, Jason has a solo episode where he talks about a motion by Maryland contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!

Jason Harrow

Equal Citizens

Concluding Thoughts

11/5/18  //  In-Depth Analysis

We thank all of the scholars and lawyers who participated in this symposium on our book, How to Save a Constitutional Democracy.

Tom Ginsburg

University of Chicago Law School

Aziz Huq

University of Chicago Law School