Published by The Lawfare Institute
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In the critical response to the President’s firing of Jim Comey, much of the commentary has centered on the action itself, its motives and its potential effects. Noah Feldman writes in Bloomberg that the President’s termination of the FBI Director was within his lawful authority, but that it breached a norm that secures the necessary measure of independence for law enforcement. He sees the crisis not so much as a constitutional crisis, as one of law, and no less serious for that. Here, on Lawfare, Benjamin Wittes and Susan Hennessey have similarly called attention to the threat to the integrity of the Russia inquiry. The emphasis is on what the President did and its implications for the rule of law.
The question of how the White House did this—the process followed and the explanation provided—tends to be of secondary concern in the analysis so far. The “how” issues are seen mainly as examples of botched political judgment or public communications strategy, or as clues to the real motives behind the action. This is a mistake. How Mr. Trump went about this firing has implications as profound as the action itself for the rule of law in his Administration.
The termination judged on its merits raises important questions, which the administration must answer, but this line of inquiry is complicated. After all, the President, as Feldman notes, has the authority to fire Mr. Comey, and some have argued that the Director may have exhausted his controversial tenure at the Bureau. Mr. Trump was quick in a late-night tweet to remind his audience that the Democratic Senate leadership had declared that Comey no longer had their confidence. Democrats and some in the press have understandably scorned the Administration’s opportunistic embrace of criticisms of Mr. Comey’s handling of the Clinton email investigation: They note that Mr. Trump had taken (and tweeted) flatly contrary positions on the campaign trail. But it seems odd to demand that the administration stay close to the positions the President staked out, in tweets and otherwise, as a candidate. Many hope, fervently, for better.
So a fair question is whether the issue of actual or perceived self-interest have made it impossible for Mr. Trump to have removed Mr. Comey at any time—or just until the conclusion of the Russia investigation? Assume that Mr. Trump had not fired Comey yesterday and that the Department of Justice’s Inspector General, now examining the Director’s handling of the Clinton email matter, issued a report finding that Mr. Comey had violated Department policies or norms. Could the President have dismissed him then?
The reason for putting the question this way is to shift the focus of inquiry from the “what Trump did” to the “how Trump did it” of the firing. This shift does not diminish the significance of the action for the rule of law. It brings out the importance of the “how” question for just this concern.
What was missing as a matter of process from the dismissal yesterday?
- A full explanation of why the decision was reached now, with this apparent urgency, when there is a pending IG investigation into Mr. Comey’s handling of the email investigation.
- The reasons for the decision not to provide Mr. Comey with advance notice of the dismissal, leaving him to learn about it from cable news—a decision made without regard for the effects on the Bureau’s morale or for the questions that would be raised about the continuity of operations (including the Russia-Trump campaign investigation).
- A full explanation of why Attorney General Sessions, who had recused himself from the Russia investigation, was involved in the decision to fire the Director in charge of it.
- A full explanation of the basis for the recommendation from Deputy Attorney General Rosenstein, who had been on the job for 14 days and who produced a short, seemingly informal memorandum in support of the dismissal.
- Any steps to assure the Congress and the public that steps have been taken to protect the integrity of a Russia investigation committed to a corps of career professional investigators and prosecutors.
- The nomination of a qualified nonpartisan, professional replacement for Mr. Comey, or the announcement of an expedited timetable for such a nomination.
The Administration, in short, has shown little regard for thoughtful process in law enforcement that is key to the maintenance of the integrity of the legal system, and of public confidence. Mr. Trump and his DOJ leadership have jumped ahead of the Inspector General’s inquiry, moving suddenly to put their views on record on the same issues the IG is addressing. They have failed to explain why they did so, when the alleged misconduct to which they appeal is no different from that which generated the IG inquiry and was widely known when the President took office. The AG was involved in this decision when recused from any matter involving the Russia investigation—again with no explanation. The Deputy AG could not have weighed the matter carefully in 14 days, some part of which he spent writing the short memorandum: which means he reached his conclusion in less than those two weeks. So with whom did he consult—and on what factual record, developed in what way and by whom, did he depend? Again: no explanation.
Moreover, the Administration took no pains to say how it would proceed to establish credible leadership for the Bureau, or to assure the Congress and the public that ongoing independent investigations would be protected. It said not a word about the Russia investigation, the existence of which was publicly confirmed by the Director in recent congressional testimony.
Only indirectly, in the letter to Mr. Comey, did the President advert to the questions about his own legal status. Remarkably, the letter referred to reassurances he claims to have received from Comey that he, the President, was not under investigation. And this is not a point in the President’s favor, but instead a further abrogation of rigorous process. It is not distantly appropriate for a President to be seeking and obtaining such reassurances, much less advertising them in a subordinate clause in a letter dismissing the individual who would have been in charge of such an investigation. At worst, this could be understood to be a message to those who remain responsible for the Russia investigation: “remember, I was told I am not under investigation.”
On display here is a failure to appreciate the importance in this administration of process and attention to form in upholding the rule of law. It is not the only example. The President’s approach to the organization of his business affairs is not dissimilar. He has locked horns with the Director of the Office of Government Ethics, volunteered his own (incomplete and misleading) judgment of what constitutes his obligation to avoid conflicts of interest, and established a controversial “trust” managed by private lawyers and notable for its lack of transparency. That Mr. Trump confronted unusual complications in managing these conflicts might be granted. How he manages them becomes, then, critical, and it on the “how” question that this government so often routinely founders.
The problem overall may be that Mr. Trump cannot help but see the legal process as he did when a businessman for so many years. He was a client, a deponent, a defendant and a plaintiff. The law and legal system were factors in the business environment; they were component parts of the machinery with he had to be familiar in order to successfully pursue his private goals. His view of the law is, it seems, coldly practical: only the results appear to count. As a candidate, he could denounce Comey for not bringing charges, then cheer him for reopening the inquiry only days before the election, indifferent until yesterday to the issues of process and norms. As a candidate, and as President, he could assail courts in harshly personal terms for failing to deliver him the goods.
Evaluation of the President as chief law enforcement officer usually rests on a judgment about whether the executive and his government followed the law. This remains, of course, a crucial test of performance and fitness, but respect for process, reflecting deep concern for the integrity of the legal system, is not less important. And failure on this score can invite, and it may portend, a more complete breakdown—at the point at which disregard for the legal system finally collapses into disregard of the law.