What Defenders of Trump's Right to Fire Comey Are Missing

The question isn’t whether a president can directly control the bureau—it’s whether other institutions, and the public, are going to let him get away with it.

Gary Cameron / Reuters

Donald Trump is leading this country into new and dark places. At each new reveal, administration critics ask their version of the question satirically posed by Saturday Night Live’s Michael Che playing NBC’s Lester Holt: “Did I get him? It’s all over?” But no, as the punchline confirms, it’s not over—and a fascinating Friday Twitter exchange shows why not.

Famed defense lawyer Alan Dershowitz has emerged as one of Donald Trump’s most full-throated defenders first in the Russia matter, then in the Comey firing. In so doing, he has devised a bold argument, already rapidly being taken to heart by other Trump defenders: an astonishing and novel claim of the president’s absolute personal control over the FBI.

Let’s deal quickly with the most obvious answer to this claim, because it involves only basic logic.

Article II Section 2 of the Constitution explicitly confers on the president the power to grant “reprieves and pardons” for offenses against the United States. It sets no limit on that power. But that would not make it acceptable if a president sold pardons for bribes.

In other words, even the president’s most core powers may not be abused for wrongful purposes—and a president firing an FBI director to protect himself from an espionage investigation would seem about as wrongful as it gets.

But there’s more to be said than that.

The Constitution decrees the basic operating rules of American government, but it offers only the haziest description of how that government actually works. Within the Constitution, there have grown a set of practices and habits that Americans today take for granted as integral to a free society. The president nominates the leadership of the Federal Reserve—but he does not dictate monetary policy. The president commands the military, but he should not favor officers known to sympathize with the president’s political party. These rules are no less compulsory for being unwritten—and so it is with the independence of the FBI from the political influence of the president.

If accepted, Dershowitz’s notion that the FBI director ought to be removable by the president at any time for any reason would transform the FBI director into a political appointee like any other—say, the head of NASA. Presidents in the past have indeed from time to time tried to impose that notion. They have, until now, always failed.

The ancestor of the FBI was created in 1908, during the administration of Theodore Roosevelt. From the start, critics of the new agency fretted it might act as a political police force, beholden to the president—and those fears were rapidly proven right. In an effort to beat back the Teapot Dome scandal, Attorney General Harry Daugherty prevailed upon the Bureau of Investigation to unearth dirt on the Harding administration’s opponents in Congress. Failing to find anything salacious enough for Daugherty, the Bureau collaborated with the attorney general actually to manufacture false accusations. The ensuing scandal toppled both Daugherty and then Director William Burns—and indelibly stained the reputation of President Harding as well.

The new Coolidge administration appointed J. Edgar Hoover director in 1924, with a mandate to professionalize the bureau and safeguard its political independence.  Hoover’s FBI would generate plenty of abuses of its own—but whatever its other faults, it emphatically refused to accept Dershowitz’s recommended theory of presidential power. Richard Nixon, who hated and feared Hoover, dared not fire him—and even reappointed him to a final term in 1971.

And when Hoover’s death at last provided Nixon the opportunity to replace Hoover with a trusted supporter, L. Patrick Gray, that very association doomed Gray’s hopes of Senate confirmation. Gray served as acting director for only 11 months. He was forced to resign after it was discovered that he had shredded Watergate-relevant documents at the White House’s behest. Gray’s resignation in April 1973 crystallized a new set of norms about the FBI.

  1. Its director would be drawn from a public service background, never politics. The six Senate-confirmed directors since Gray have all made their careers as law-enforcement professionals: in the bureau itself, or as prosecutors or judges. The only one of the group to have any faint political affiliation, Republican James Comey, was nominated by a Democratic president, Barack Obama.

  2. The FBI director would not change with a change of administration. Clarence Kelly, appointed by President Nixon, served under Presidents Ford and Carter until 1978. William Webster, appointed by President Carter, served under President Reagan until 1987. And so on.

  3. FBI directors would be dismissed by presidents only for cause, and after presentation of evidence of misconduct to Congress, as happened with Director William Sessions and President Clinton in 1993.  

These norms were not entered into law. They were just … what was done. Presidents Ford, Carter, Reagan, Bush 41, Clinton, Bush 43, and Obama would no more have considered defying them than they would have considered using the presidency to publicize their personal business ventures.

These presidents refrained from politicizing the FBI directorship because they thought they should. But they also understood that the rest of the political system, notably Congress, expected that they would. Such expectations, however, exist only in the minds of people. If important sectors of the political system change their expectations—if they begin believing it acceptable for the president to treat the head of the FBI as part of his political team like, say, the director of the Office of Management and Budget—then one crucial, fundamental underpinning of the nation’s government will have been altered as decisively as by a formal constitutional amendment.

American political culture is highly legalistic. It tends to have difficulty acknowledging any third category between “legal” and “illegal” (except, perhaps, “unpopular”). But if there is nothing in positive law to prevent the president from firing directors who embarrass him and nominating agreeable politicians to replace them, then the United States will have taken an important step away from the rule of law if a president were to do it and get away with it. The debate whether Trump can do this may provide an interesting question on some future law school exam. For now, everyone who respects law should be insisting that whether he “can” or “cannot”—his modern predecessors never did, and he must not be allowed to deviate from their precedents.

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