//  5/10/17  //  Commentary

Yesterday, as everyone now knows, President Trump fired FBI Director James Comey.  Here’s why Trump’s action should worry everyone.

Our country has a very strong, very important norm of apolitical law enforcement.  But this norm, ironically, is enforced mostly by politics, not law—and Trump’s action has risked doing it irreparable damage.

What do I mean by apolitical law enforcement?  I do not mean that presidents and prosecutors must pursue every legal violation with equal zeal.  For better or worse, we accept that different presidents and prosecutors may hold quite different overall priorities.  Within the bounds of such priority-setting, however, we expect that presidents and prosecutors will not use law enforcement for naked partisan advantage.  In other words, we expect prosecutors to pursue cases based on what the defendant did, not based on who they are or what party they belong to.

This expectation has two key aspects.  First, we expect prosecutors and criminal investigators to pursue serious crimes without fear or favor, whatever the political party or wealth or connections of the suspect.  But second, we also expect that prosecutors will exercise discretion in focusing on truly culpable offenses.  We do not want them to weaponize criminal justice by pursuing technical violations against partisan enemies for political gain.

In firing Comey, Trump egregiously violated the first of these expectations—the norm against self-dealing.  Just days after public testimony about possible collusion between Trump’s campaign and a hostile foreign power, Trump fired the man overseeing investigations into such wrongdoing.

The message to anyone in the administration was clear:  Pursuing my friends and associates is bad for your career.

That was bad enough, but the firing also threatens the second expectation—the norm against politically motivated prosecution.

By statute, the FBI Director holds a ten-year term.  Though legally non-binding, this fixed tenure aims to protect the Director’s political independence.  Comey, moreover, took his independence seriously.  While his choice to go public with reasons for not prosecuting Secretary Clinton can certainly be criticized, Comey was at least trying to model disinterested prosecutorial decision-making for his agency.

Presumably out of respect for the Director’s independence, President Obama did not fire Comey.  But Trump did.  Again, this action risks sending a worrying message to subordinates:  Disinterested decision-making is for suckers, so don’t hold back against my enemies.

This message may be even more frightening than the first.  Why?  Because a great deal of criminal law today is not really designed to separate the truly culpable from the technically guilty.  It is instead deliberately overbroad, so as to facilitate convictions when prosecutors determine that truly culpable misconduct has occurred.

That means our criminal justice system depends crucially on prosecutorial self-restraint—on prosecutors picking cases based on a set of ill-defined political norms and professional understandings about what charges are brought in what circumstances.  If this political economy of prosecution falls apart, the criminal law could become a potent weapon for partisan destruction.

For all these reasons, the bipartisan political blowback against Comey’s firing is important.  Courts might play some limited role in enforcing norms of disinterested prosecution (a topic I hope to address further soon).  But the main means of enforcing these norms has been political, and it has worked in important past cases:  Just ask President Nixon about his Saturday Night Massacre, or President George W. Bush about his firing of U.S. Attorneys.

Will Trump, too, pay a political price?  That is now the key question.  Let me suggest three things to watch, followed by some unsolicited advice for the President’s associates. 

            1. What will Rod Rosenstein do?  One key question is whether the Justice Department moves to end serious investigation of Russian collusion.  Having offered Comey’s Obama-era departures from policy in the Clinton investigation as a (likely fictional) justification for Comey’s firing, Deputy Attorney General Rod Rosenstein—himself an experienced and well-regarded prosecutor—must now demonstrate that the Justice Department retains independence in pursuing serious crimes without regard to politics.

           2. What will the Senate do?  Any permanent successor to Comey will require Senate confirmation.  The Senate must use the confirmation process to ensure that the position is filled by someone with spine, not the sort of crony Trump might prefer.

           3. What will Congress do?  Finally, Congress should step up its own investigations while also asserting greater control over the FBI’s.  When current appropriations expire next fall, Congress should consider conditioning further funding on investigation of executive-branch wrongdoing remaining a priority.  Special prosecutors and mandated investigations are scary too, precisely because they also threaten disinterested decision-making, but thanks to Trump’s actions, the alternatives now appear worse.

As for my unsolicited advice to Trump’s associates, let me just pose a dark question:  If the norm against politically motivated prosecution collapses, will all the pain really fall on one side?  The President can pardon offenses against the United States, but not crimes under state law.  There might well be some ambitious state prosecutors out there who could make a name for themselves bagging partisan prey.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP