The firing of James Comey is blatantly political. The bottom line is presumably that the Trump administration knows it can’t control Comey and so it doesn’t trust him, says Noah Feldman
The Federal Bureau of Investigation is part of the executive branch, not an independent agency. But the firing did violate a powerful unwritten norm: That the director serves a 10-year, nonrenewable term and is fired only for good cause.
Only one director has ever been removed from office involuntarily: President Bill Clinton fired director William Sessions in 1993 after an internal report found he had committed significant ethics violations.
There is therefore reason to be deeply concerned about Comey’s firing, which has the effect of politicising law enforcement — a risky precedent in a rule-of-law democracy.
And the fact that the FBI is investigating the Trump administration makes that politicisation look like pure presidential self-interest.
Practice regarding FBI directors doesn’t go back all that far, because J Edgar Hoover ran the department from 1924 to 1972, ultimately dying in office. Hoover was too powerful and knew too much to be fired.
In reaction, Congress adopted a law in 1976 that limited the director to a 10-year term. The law doesn’t place any limits on presidential power to fire the director.
Arguably, law enforcement is so central to the core constitutional power of the executive that it would violate the separation of powers if US Congress tried to take away the president’s authority to remove the chief federal law enforcement officer.
At the same time, however, it’s anomalous in a rule-of-law system for law enforcement to be too responsive to the political whims of the elected executive.
It’s just very risky to allow a country’s most powerful elected official to control the appointment of key law enforcement officers — in part because of conflicts of interest like the one raised by the Comey firing.
As a result, the vast majority of well-functioning democracies professionalise the investigative role, rather than politicising it.
That’s been the unwritten norm in the US — one might almost say, a part of our unwritten, small-c constitution, though not of the written, big-C Constitution.
Of the four Senate-confirmed directors before Comey, all served under presidents of both parties. Three served until their terms ended or they voluntarily retired. One, Robert Mueller, got a special two-year extension.
The exception was William Sessions. Initially appointed by president Ronald Reagan, he was fired by Clinton after an investigation by the Office of Professional Responsibility of the Department of Justice found that he’d used FBI planes to visit friends and relatives.
Clinton tried to get Sessions to resign in order not to have to break precedent and fire him. But Sessions refused, and Clinton pulled the trigger and fired him anyway.
Trump alluded indirectly to the Sessions firing in his message to Comey when he said “you are not able to effectively lead the bureau”. This echoed Clinton’s language when he said that Sessions could “no longer effectively lead the bureau”.
By implication, Trump was saying he has as much right to fire Comey as Clinton did to fire Sessions. In practice, there’s a big difference between Sessions’s ethics violations, which were documented by George W Bush’s Department of Justice, and Comey’s admittedly highly problematic management of the investigation of Hillary Clinton.
Comey may arguably have acted unethically by announcing the reopening of the Clinton email investigation shortly before November’s election — but Trump didn’t say so, and surely he’s the last person in the world who would make that claim.
The firing of Comey is blatantly political. The bottom line is presumably that the Trump administration knows it can’t control Comey, and so it doesn’t trust him.
It seems to me, for what it’s worth, that Comey should have resigned after Trump’s election to avoid the appearance that he had politicised his position to the benefit of the candidate who won. I’m not writing to mourn his tenure.
Yet Comey’s act of politicisation doesn’t justify Trump’s decision to make the firing of the FBI director into a political act. It’s a classic case of two wrongs not making a right.
And it’s profoundly troubling that a US president whose administration is already under investigation on multiple fronts would take such an action. Whoever is appointed to run the FBI permanently will be seen as beholden to the president who appointed him or her.
That will make any decision not to pursue investigations into the president look politically motivated and illegitimate.
The erosion of the independence of law enforcement is thus a blow to the unwritten constitutional norm of political neutrality. It doesn’t violate the separation of powers. But it violates a norm that in its own way is almost as important.
Key events that led to Comey’s sacking
Sept 4, 2013: Comey is sworn in to office as the seventh director of the FBI. He was nominated for the post by president Barack Obama and confirmed by the Senate.
July 5, 2016: Holds news conference to announce that “no reasonable prosecutor” would bring criminal charges against Hillary Clinton, the Democratic presidential candidate, over her email practices as secretary of state, but criticizes Clinton and her staff for being “extremely careless” in their handling of classified material.
July 5, 2016: Republican presidential candidate Donald Trump calls the FBI’s decision not to bring criminal charges against Clinton the greatest example yet that the system in Washington is “rigged”.
July 7, 2016: Comey vigorously defends the decision not to prosecute Clinton over her use of a private email server as secretary of state. Under an onslaught of Republican criticism, Comey says that to charge Clinton would have been unwarranted and mere “celebrity hunting”.
Oct 28, 2016: Days before the election, Comey informs Congress by letter that he was reopening the investigation into Clinton’s email practices based on new evidence, citing the discovery of emails on a laptop used by a top Clinton aide. Justice department officials warned Comey against sending the letter, saying that doing so would be inconsistent with department policy meant to avoid the appearance of prosecutorial interference or meddling in elections.
Oct 28, 2016:Trump reacts to FBI’s decision to investigate new messages related to Clinton’s emails, telling a campaign rally that he has “great respect for the FBI for righting this wrong”.
Nov 6, 2016: Comey tells Congress in a follow-up letter that a review of newly discovered Clinton emails has “not changed our conclusions” that she should not face criminal charges.
Nov 6:Trump criticises Comey’s second letter to Congress, saying Clinton was being protected by a “rigged system” and pronouncing her “guilty”, despite the FBI’s conclusion that criminal charges were unwarranted.
Nov 8, 2016: Trump is elected president.
Nov 12, 2016: During a telephone call with top campaign donors, Clinton blames Comey for her defeat by Trump. Clinton said her campaign was on track to win the election until Comey sent the letter to Congress on Oct 28.
Nov 13, 2016: In a CBS 60 Minutes broadcast after the election, Trump said he hadn’t decided whether to keep Comey.
Jan 6, 2017: Comey is among a group of four top US intelligence officials who briefed then-President-elect Donald Trump on their conclusions that Russia meddled in the presidential election on his behalf. Trump told the Associated Press by telephone after the meeting that he “learned a lot” but declined to say whether he accepted their conclusion about Russia.
Jan 22, 2017: Two days after taking office, Trump appears to single out Comey at a White House reception to thank law enforcement officers and others that helped during the inauguration. Trump called Comey over to where he was standing in the Blue Room to offer a handshake and a partial hug, then commented that Comey has “become more famous than me”.
March 8, 2017: During a cybersecurity conference at Boston College, Comey said he planned to serve his entire 10-year term, quipping, “You’re stuck with me for another six and a half years”.
March 20, 2017: Comey testifies to Congress that the FBI has been investigating possible links between Trump associates and Russian officials since July, the same month he held an unusual news conference to discuss the investigation into Clinton. Comey had previously refused to acknowledge the parallel Trump investigation, and his disclosure enrages Democrats who already blamed Comey for costing Clinton the presidency.
March 20, 2017: Comey testifies at the same hearing that the FBI and justice department have no information to substantiate Trump’s unsubstantiated claim on Twitter that former president Obama wiretapped him before the election.
May 2, 2017: Clinton again lays part of the blame for losing the election on Comey’s Oct 28 letter. “If the election were on Oct 27, I would have been your president,” she tells a women’s luncheon in New York.
May 3, 2017:Testifying before the Senate judiciary committee, Comey insists that he was consistent in his handling of the separate investigations into Clinton and Trump. Comey also said it made him feel “mildly nauseous” to think his actions in October might have influenced the election outcome. But he told senators: “I can’t consider for a second whose political futures will be affected and in what way. We have to ask ourselves what is the right thing to do and then do it.”
May 9, 2017: Comey sends Congress a letter correcting his prior sworn testimony regarding emails handled by longtime Clinton associate Huma Abedin. Comey had told Congress that Abedin had sent “hundreds and thousands” of emails to her husband’s laptop, including some with classified information. The two-page, follow-up letter said that, in fact, only “a small number” of the thousands of emails found on the laptop had been forwarded there while most had simply been backed up from electronic devices.
May 9, 2017: Trump abruptly fires Comey. “It is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission,” Trump states in a letter addressed to Comey.