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.