Trump’s Firing of Comey is a Serious Threat to the Rule of Law

Trump’s Firing of Comey is a Serious Threat to the Rule of Law

Anyone who has taken the time to review the founding documents of the United States can tell that their authors had a dim view of human nature. They had seen what could be wrought from the excessive centralization of power and its corrupting influence on those exercising it. As a result, the United States was designed to institutionally disperse power both horizontally, through three independent branches of government; and vertically, through a federalist system that gives federal, state, and local governments different responsibilities. With various sources of governmental power able to hold each other accountable and a free and independent media, the United States has been able to limit malfeasance and corruption and give observers confidence in the rule of law.

When President Donald Trump fired FBI Director James Comey on May 9th, he did not engage in a direct affront to the separation of powers. As part of the Department of Justice, the Federal Bureau of Investigation is under the purview of the Attorney General and thus the President of the United States. Trump’s firing of Comey is not an obviously illegal act. After J. Edgar Hoover’s exercise in power accumulation was itself a threat to democracy, limitations were placed on the head of the Bureau. A 1976 Federal law limits the time an FBI Director can serve to no more than ten years and as part of an administrative agency within the executive branch can be fired by the President before his term expires. While it’s true that a case for obstruction of justice can be made against the President, proving that case would be a near impossibility. The questions raised by the firing are not questions that can be answered through black letter law.

Many have compared Comey’s firing to the so-called “Saturday Night Massacre” when disgraced President Nixon fired successive Attorneys General until one, Robert Bork, would firing the special prosecutor that was requesting taped conversations in the Oval Office. Both then and now, the firings seem clearly motivated by concerns of loyalty and interference with on-going investigations.

James Comey was by no means a perfect public servant, nor above criticism. At one time or another people of both political persuasions were displeased by the decisions he made. But, Comey also appears to have done his best to keep the FBI out of political decision making and as an impartial, investigative organization. If anything, it seems that Comey’s politics were pretty centrist.

The timeline of events itself is fairly damning for Trump. The chain of events that led to Comey’s firing intertwines with two separate investigations related to the 2016 Presidential election. The first investigation began after reports surfaced of Hillary Clinton’s use of a private e-mail server while she was Secretary of State. Clinton later admitted that her use of the private server was improper, but the FBI’s investigation did not reveal any evidence indicating that Clinton should be charged with mishandling classified material. When a new cache of emails was uncovered, Comey publicly announced the re-opening of the investigation shortly before the election. Under pressure from Congressional Democrats, Comey stated that he felt between the proverbial “rock and a hard place.” If he declined any comment, he could be seen as covering up information in an effort to support Clinton and if he made a public announcement, he risked criticism over interfering with the election in support of Trump. He chose what he felt was the most transparent option. Although criticism of Comey over not also being more forthcoming about investigations into the Trump campaign is valid, Comey’s explanation of his thought process seems reasonable.

The second investigation also started with emails. When it became evident that hackers from Russia had hacked into the Democratic National Committee’s email server to release information that made both the Democratic Party and Secretary Clinton look poorly, the FBI investigated and that investigation broadened to encompass the possible ties the Trump campaign had with Russia. It soon became apparent that key members of the Trump campaign, including Michael Flynn, had had contact with representatives of the Russian government and had been dishonest about them. In March of this year, Director Comey publicly confirmed that an on-going investigation was being conducted regarding the Trump campaign and the Russian government. In the past couple of weeks, Comey has intensified the investigation and requested additional resources to complete it.

According to numerous sources within the government, Trump’s anger with Comey was partially driven by Comey’s refusal to substantiate his claims that Obama wiretapped Trump Tower. He publicly refuted them and privately made even harsher statements about the claim and Trump himself. Comey saw himself as a protector of the independence of the FBI, Trump saw him as a subordinate who owed unquestioned loyalty. Trump was further enraged by Comey’s seeming disinterest in what the President felt were serious leaks and then, of course, the zeal and resources Comey was devoting to the Russia investigation.

When the FBI Director appeared before Congress and said he was “nauseous” at the thought he may have influenced the election, the President’s temper was once again incited, interpreting the remark as saying that Comey’s investigation was the reason for his election. Under the guise of responding to inaccurate testimony that Comey gave, Trump instructed the Attorney-General and Deputy Attorney-General to outline the case against Comey. Then, Trump accepted that case and asked for the FBI Director’s resignation.

In response to criticism, Trump has said on multiple occasions that Comey told him three times he was not under investigation. It is a violation of Justice Department Policy for the President to ask about on-going investigations and Comey has said through others that he never made those assurances. Worse, Trump and the White House clearly lied when they initially stated that Comey was fired for his treatment of Hillary Clinton. No one, not even the President’s fiercest supporters, could rationally believe such a thing.

Trump fired the FBI Director because he would not do his bidding, either in connection to the Russian investigation or by supporting some of his far-fetched accusations of wiretapping and voter fraud. He was fired, above all, for trying to keep the FBI politically independent.

President’s are generally immune from criminal prosecution for acts performed while in office, instead for serious crimes the Constitutional remedy is impeachment and removal from office. Americans rightly expect their leaders to not place themesleves above the rule of law and interfere with on-going investigations, regardless of legal rights. To eliminate even the appearance of wrongdoing, it is imperative that a Special Prosecutor be appointed to oversee the Russian investigation. If there is nothing to hide, that should not present a problem for the White House. And if the constitutional sepearation of powers is not enough to provent the accumulation of power in an office of government, its incumbent upon the media and citizens to oppose it.

 

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