Is This a Constitutional Crisis?

As the news broke late this afternoon, the politicos of Washington stared into their smartphones, stunned, struggling with what to make of it. TV networks cut into their regularly scheduled programming. Chyrons promising “breaking news” actually delivered it: President Donald Trump had fired FBI Director James Comey.

Though the story is still developing and our understanding of it is evolving, we know a few basic facts. We know that Trump cited Comey’s handling of the inquiry into Hillary Clinton’s emails as a reason for his firing. We know that Comey’s FBI had been investigating whether members of the Trump campaign colluded with Russia to influence the outcome of the 2016 election. What we don’t know is where all this ends.

Is this a constitutional crisis? If not, what is it, and how dangerous? POLITICO Magazine asked an all-star panel of legal minds to offer their insights and tell us just what to make of it.

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It’s either ‘comforting’ or ‘alarming’
Cass Sunstein is professor at Harvard Law School. From 2009 to 2012, he was administrator of the White House Office of Information and Regulatory Affairs.

There are two ways to understand President Trump’s firing of James Comey, and neither is unreasonable. The first is that in light of the multiple controversies that came to surround Comey, he was rightly fired. The FBI director needs to be widely trusted by the American people. Comey is not widely trusted. For the FBI, a fresh start is a good idea.

The second is that Trump does not want an independent FBI director; he wants someone who is fully subservient to him. Everyone should agree that Comey is not a subservient type. Like him or not, he is no one’s lackey. When Comey is in charge of an investigation, he goes where the facts take him (by his own lights). He insists on exercising his own judgment.

The first understanding is comforting; the second is alarming. Whether one or the other is right (or both), it is the responsibility of the Senate to ensure that the new FBI director is a person of unimpeachable professionalism, nonpartisanship and integrity. At this point in our history, the United States is struggling with unusually high levels of polarization and distrust, and the FBI is engaged in investigations that involve the White House itself. The Senate’s responsibility has never been more solemn.

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‘Trump’s actions were entirely constitutional’
Josh Blackman is a constitutional law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.

Under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional. Indeed, the termination was accompanied by a fairly elaborate set of reasons by the deputy attorney general.

As for whether there is a crisis, we must keep in mind that Comey’s replacement must be approved and confirmed by the Senate. Both Republicans and Democrats will have a say in who heads the agency going forward. At bottom, this is a political question, which ultimately the electorate can decide.

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‘It’s a deeply unsettling moment’
Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, is the author of The Fight to Vote and The Second Amendment: A Biography.

It’s a deeply unsettling moment.

This has every appearance of a brazen cover-up, a possible act of obstruction of justice, just as much as Richard Nixon firing the Watergate special prosecutor Archibald Cox in October 1973. That’s the only comparable historical precedent. That led to a constitutional crisis and a public outpouring of anger. Will this?

Trump’s rationale is transparently, laughably absurd. Does anyone actually believe that Donald Trump fired Comey because Comey was unfair to Hillary Clinton during the campaign?

Let’s be very clear what happened here. For all his flaws and mistakes, Comey is leading an investigation of extraordinary gravity: possible collusion between Trump, his campaign and administration, and a hostile foreign power. Remember, Jeff Sessions recused himself from the investigation because he himself lied to Congress about conversations with Russia. So he did the next best thing, recommending that the person leading the investigation–Comey–be fired.

It comes a day after the former Acting Attorney General clearly implied there was an ongoing FBI investigation of Michael Flynn. It comes before Comey was due to testify again.

Comey made many errors. But does anyone trust Trump to nominate his successor, the person who will effectively lead the investigation? How can Americans have trust in their government without even the pretense of independence for key investigations?

This is an extraordinary test of our democracy and its institutions. Will the Republicans in Congress stand up for the rule of law and independent investigations, at a time when a hostile foreign power has tried to interfere in our democracy? Will they stand up for country or party?

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‘We are not at crisis yet’
Robert Chesney is a professor at the University of Texas School of Law, cofounder of the Lawfare Blog, and senior editor for the Journal of National Security Law & Policy.

Trump was clever here in two respects. First, the timing. He chose a moment of sharply renewed anger on the left regarding Comey’s role in the election, and took pains to frame his justification in part in those exact terms. Most of us understand that this is not at all why he fired Comey, of course, but the fact remains that this somewhat wrong-footed his critics. Second, note the critical role played by issuing the memo from Deputy Attorney General Rod Rosenstein alongside the firing letter. Rosenstein is a respected law-and-order figure, with far more credibility than Attorney General Jeff Sessions acting alone.

All that said, we are not at crisis yet. What matters is who comes next and what happens with the Russia and Flynn investigations. If the Trump team is smart, they will have an established law enforcement professional to nominate. At any rate, it will all come to a head in the Senate Judiciary Committee at that point. Paging Chairman Grassley: The Republic will be looking to you!

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‘James Comey needed to be ousted’
Saikrishna Prakash is a professor of law at the University of Virginia and a senior fellow at the Miller Center.

James Comey needed to be ousted, whoever was in the White House. His mishandling of the Clinton investigation and his usurpation of prosecutorial decisions reflected poor judgment and something of a messianic complex. President Trump must be faulted for failing to come to this conclusion months ago. Count on more controversial firings.

Whether the ouster was related to the investigation of Russian hacking is unclear. But the new FBI Director will have to make all sorts of pledges to conduct an independent investigation in order to secure the Senate’s consent. Even as there are profound disagreements about the effects of the hacking and leaks on the election, I believe that there is a firm bipartisan consensus to determine what Russia did during the election and to take steps to ensure it does not happen again. The numerous investigations will continue, albeit without James Comey.

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‘We should reserve judgment’
Jamal Greene is vice dean and professor of law at Columbia Law School.

Allusions to the Saturday Night Massacre are irresistible but premature. President Trump’s firing of James Comey is not a constitutional crisis—yet. We don’t have all the facts, and there is much Congress could do to learn them.

Given the FBI’s ongoing investigation into contacts between Trump campaign personnel and agents of the Russian government, it is crucial that responsible members of Congress from both sides of the aisle are fully briefed—including by Comey himself—on the status of that investigation and how it will be handled going forward.

We should reserve judgment until that happens—or doesn’t.

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