Earlier this week, Noah Feldman wrote about the main conflicts between Trump and a Justice Department that doesn’t follow his whims. With Wednesday’s release of an FBI statement staunchly (and, it turns out, vainly) opposing the release of the Nunes memo, the gap is only larger. Feldman writes:
The basis for his frustration is a serious mismatch between the U.S. Constitution as it’s written and the unwritten constitutional norms that Trump is blamed for breaking. The written Constitution puts the Justice Department and the FBI squarely under the president’s control. The unwritten, lower case “c” constitution says that the president may not politicize criminal investigations and prosecutions.
Feldman notes how this written/unwritten tension can play out: “We sometimes think of the Saturday Night Massacre as though it were entirely about the firing of Cox. But it was also about [Elliot] Richardson and [William] Ruckelshaus. Their refusal to follow Nixon’s order and their immediate resignations embodied the unwritten constitutional norm against politicizing investigation[s].”
What Trump is doing is slowly eroding the unwritten parts. Nixon discovered, to his chagrin, just how strong the unwritten constitution was when he set out to fire Cox. Trump, either by design, by the grace of his advisers staying his hand, or thanks to his remarkable intuitive grasp for politics, is playing a longer game of undermining. It’s not just top officials who are subject to it, either. Former CIA officer Bob Baer argued on CNN on Friday, following the release of the memo, that it would have a chilling effect on FBI officers in the field, who might think twice about bringing information about Russian activity to superiors for fear of political blowback.
Trump’s long game is craftier than the Saturday Night Massacre, but that doesn’t mean it’s invincible. As Feldman notes, the president has the authority to fire people, but doing so without incurring political damage requires having some sort of cause to fire them—usually, an accusation that rules were broken. The memo that Rod Rosenstein wrote, cataloguing James Comey’s errors in the Hillary Clinton investigation, provided such a cause. Before the Nunes memo came out, Republican members of Congress suggested it would offer just such a cause for McCabe or Rosenstein or both, alleging serious “violations of the public trust,” in Nunes’ words.
Trump doesn’t really object to procedural errors, though—what he objects to are the findings that investigators have produced. The White House initially said Comey had been fired for mishandling the Clinton investigation, but that made little sense, since Trump had made contradictory critiques of Comey, and sure enough, the president quickly blew up the official rationale in an interview with Lester Holt, in which he said he’d fired Comey over the Russia probe. The power of the Nunes memo (when unwritten) was that it promised to show procedural errors in the FBI and DOJ’s work. Once it was published, however, it became clear that the accusations of procedural errors are murky at best, while on the broad point, the memo undermines the Trump line that the Russia probe stems from a partisan dossier, noting that the inquiry into the Trump campaign had actually begun months before the dossier itself came into play.