Does Comey's Dismissal Fit the Definition of a Constitutional Crisis?

Has the firing of James Comey precipitated a constitutional crisis? The day after the firing, law professors began a vigorous debate. At Politico, and at greater length in The New York Review of Books, the ACLU’s legal director, David Cole, said that a constitutional crisis is at hand because “Anytime a sitting president fires the person responsible for investigating his campaigns potential criminal activities, it is a matter of grave public concern. When that criminal investigation involves collaboration with Russia to undermine the U.S. democratic process, it’s a constitutional crisis.” In the same symposium, Josh Blackman of the South Texas College of Law disagreed, arguing that “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.” In a follow-up podcast debate, Cole argued that a constitutional crisis occurs any time the presidents attempts to subvert a basic constitutional norm, such as the rule of law; Blackman countered that to qualify as a constitutional crisis, the president’s actions have to violate the Constitution itself.

That lack of consensus reflects the difficulty of defining what qualifies as constitutional crisis in the first place, and whether it should be defined narrowly or broadly. But the most convincing definitions tend to be narrow, and under all of them, America is not yet in a constitutional crisis. Whether one materializes depends on what President Trump does next.

As the constitutional scholars Jack Balkin and Sanford Levinson point out in their 2008 article on constitutional crises, the “language of crisis,” has recurred since the ratification of the Constitution, but the phrase “constitutional crisis” has no fixed meaning. Since the purpose of constitutional checks and balances is to create conflict among and between the branches and the federal government and the states, they argue, “If we were to say that every such confrontation was a crisis, we would have to conclude that the American Constitution was designed to place the country in a state of perpetual crisis.” Jeff Shesol, for example, identifies President Roosevelt’s “Court-packing” plan of 1937 as a constitutional crisis, but Balkin and Levinson dispute this: “Roosevelt simply accepted his defeat and did not attempt to install extra Justices without congressional approval.” The impeachments of Andrew Johnson and Bill Clinton, by the same token, are hard to view as constitutional crises, since the Constitution contemplates presidential impeachments. During the Clinton impeachment, the unaccountable, unconstrained, arguably unconstitutional and mercifully lapsed independent counsel law arguably subverted the constitutional structures far more than Clinton did.

So what’s the best definition of a constitutional crisis? Balkin and Levinson offer a narrow definition that includes three separate types:

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises … Type one crises arise when political leaders believe that exigencies require public violation of the Constitution. Type two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this task.

Searching throughout American history, Levinson and Balkin find no examples of type one crises, since no political leader has publicly announced an intention to violate the Constitution in the name of exigency, although some presidents have expressed their constitutional doubts privately, as when Jefferson confided his doubts about the constitutionality of his own Louisiana Purchase, which doubled the size of the United States. “The last type one crisis in American history may have occurred in Philadelphia in 1787,” they conclude, “when proponents of the new Constitution deliberately ignored their limited mandate from Congress and, more importantly, the requirements” of the Articles of Confederation that any amendments be unanimously approved by all 13 states.

Their best example of a type two crisis, where adherence to constitutional form leads to ruin or disaster, is the Civil War. President Buchanan believed he had no constitutional power to prevent the Southern States from seceded, even if it meant the dissolution of the Union. Lincoln took the opposite position, that he had an obligation to prevent what he viewed as the South’s unconstitutional secession, and the constitutional dispute had to be settled on the battlefield. As for type three crises, where public disagreements about the Constitution lead to extraordinary forms of protest, such the threatening of brute force, Levinson and Balkin offer these examples, most of them involving a conflict between the North and South:

• The 1800 election stalemate, which began as a type two crisis because of the poor design of the presidential election rules and became a type three crisis when various states threatened to march their militias to Washington to settle the matter; it was resolved by Jefferson’s election;
• The battle over the “tariff of abominations” that produced nullification resolutions in South Carolina, resolved by Andrew Jackson’s military threats and the compromise tariff that let South Carolina back down;
• The 1860–1861 secession crisis that led to and was resolved by the Civil War (itself a constitutional crisis);
• The 1865–1868 struggle over Reconstruction, which involved expulsion of southern senators and representatives, military governorship of the South, and impeachment of Andrew Johnson, resolved by Johnson’s acquittal and his acquiescence in the ratification of the Fourteenth Amendment;
• The 1868–1876 struggle over Reconstruction, which featured the violent insurgency of the Ku Klux Klan and similar devotees of the ostensibly defeated Old Order and the disputed 1876 presidential election—it was resolved by the appointment of an election commission and by the “Compromise of 1877” that led to the restoration of white rule;
• The Little Rock crisis of 1957, resolved by the dispatch of federal troops to integrate the schools.

As Balkin argues in a separate article, “Constitutional Hardball and Constitutional Crises,” the term should be defined narrowly enough that constitutional crises are rare. “If the goal of a constitution is to preserve political stability and make ordinary forms of democratic politics possible,” he argues, then “a constitutional crisis occurs when the constitutional system can no longer perform this function.”

Michael Gerhardt, visiting scholar at the National Constitution Center, also describes constitutional crises as instances where there is no adequate constitutional mechanism available to solve a particular problem. He notes a host of recent crises that were ultimately resolved politically or judicially—from three serious impeachment attempts to undeclared wars to Bush v. Gore—and suggests that “constitutional crises are extremely rare episodes in which national political leaders recognize the inadequacy of the Constitution.” For example, he notes, during the election of 1800 when Jefferson and Burr received the same number of votes in the Electoral College, the House was forced to resolve the question—but in making its decision, “the House received no guidance from the Constitution or historical practices.” This, for Gerhardt, was a true constitutional crisis.

Finally, during a National Constitution Center panel last summer at Independence Hall in Philadelphia on America’s Biggest Constitutional Crises, Annette Gordon-Reed of Harvard Law School argued that constitutional crises take the form of structural conflicts which the Founders of the Constitution never addressed or crises that require changing the Constitution itself.

Using these relatively narrow definitions, was the firing of Comey a constitutional crisis? Many commentators have compared the firing to the “Saturday Night Massacre” of October 20, 1973—in which President Nixon fired Watergate Special Prosecutor Archibald Cox, accompanied by the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus. “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,” writes Michael Waldman. “That’s the only comparable historical precedent. That led to a constitutional crisis and a public outpouring of anger.” But although the Saturday Night Massacre has sometimes been called a constitutional crisis, Nixon didn’t act illegally by firing a member of the Justice Department, and Nixon’s resignation in the face of impeachment prevented a constitutional crisis rather than precipitating one. Nixon would have precipitated a type one constitutional crisis if he had refused a Supreme Court order to turn over recordings of conversations in the Oval Office, as he was contemplating doing at the time, The New York Times reported in 1974:

President Nixon's chief defense lawyer, James D. St. Clair, said today that he did not know whether the President would obey a Supreme Court order to turn over subpoenaed White House tapes.

Mr. St. Clair made it clear that the President was at least keeping open the option of defying the Court.

He also made clear what the President's explanation would be should be defy the Court: the “public interest.” ….

As a result, he raised the prospect of a monumental constitutional, collision, unprecedented in the nations history. For although at least one former President is known to have considered defying the Supreme Court, no President, as far as is known, has ever done so ….

The Court could, of course, decide, in Mr. Nixon's favor decide, before, a surprise decision by the Court averted another potential confrontation between a President and the Court. This was in 1935, when the Court was considering the so‐called “Gold case,” a complicated lawsuit involving the abrogation of the promise to pay gold to bond holders.

President Roosevelt, expecting an adverse decision, had prepared what Arthur M. Schlesinger Jr., the historian, terms “a dissent of his own in the shape of a set of proclamations and orders nullifying an adverse Supreme Court decision,” The President had prepared a radio speech to the nation to advise it of his action.

But by a five‐to‐four vote, the Court made the speech unnecessary.

Whether or not Trump’s firing of Comey evolves into a constitutional crisis ultimately depends on what happens next. If Trump publicly refuses to obey a legal order from Congress or the Senate or a special prosecutor, that unprecedented defiance would qualify as our first type one constitutional crisis since the ratification of the Constitution itself. If, to invent a sweeping hypothetical, evidence emerged of treasonous conduct toward Russia by Trump in office—the paradigmatic impeachable offense—Congress refused to impeach, and the states responded by sending militias on Washington, that would be a type three constitutional crisis. And if disagreement about how to resolve the Russia investigation led to civil war between red states and blue states, that would be a type two constitutional crisis. At the moment, however, we have constitutional conflict without a constitutional crisis, and for that merciful reality we can be thankful.