The much-anticipated but much-delayed release of the House Intelligence Committee memo produced by Representative Devin Nunes produced any number of Beckettian diversions over the last week, and for a good portion of the day on Thursday, attention focused on FBI Director Chris Wray and whether he might resign.
In the wake of the FBI’s highly unusual public statement opposing the release of the memo (and placing it at odds with the White House), The Washington Post’s Matt Zapotosky plucked from the archives an anecdote in which Wray was ready to resign over Bush-era surveillance overreaches, along with—wait for it—James Comey and Robert Mueller. CNN reported that White House aides were afraid Wray would resign if President Trump released the memo. Then NBC’s highly reliable Pete Williams poured cold water on it, saying Wray had no intention of stepping down.
The Wray subplot attracts so much attention not just because the anxious politerati needed something to occupy themselves, and not just because of the gravity of Trump potentially pushing out a second FBI director, but because of the resonances of the 1973 Saturday Night Massacre, in which Richard Nixon’s attorney general and deputy attorney general both resigned rather than fire Watergate special prosecutor Archibald Cox. The resignations and firing (done by Solicitor General Robert Bork) marked the beginning of the end for Nixon.
In the current scandal, so often compared to Watergate, there’s a tendency to seek direct parallels. This is enhanced by the clear threat to Special Counsel Robert Mueller from the president, complete with reports that Trump ordered White House Counsel Don McGahn to fire Mueller, and backed down only when McGahn threatened to resign.
The current, unnamed scandal won’t work in the same way, and the search for a Saturday Night Massacre is misguided for two reasons. First, people are already being fired. And second, even when they’re not, Trump is accomplishing many of the same things that would otherwise be accomplished with firings via other means.
Even without one, big showdown over firings, Trump is already pushing staffers out at prodigious speed. (This has inspired some pundits to brand it a “slow-motion Saturday Night Massacre.”) First was FBI Director James Comey. This week, Comey’s deputy, Andrew McCabe, was pushed into earlier retirement after massive pressure from the White House. (Axios reported that Trump had previously wanted McCabe fired, but that Wray refused; on Thursday, Donald Trump Jr. argued McCabe had been fired.) The president has expressed regret for appointing Attorney General Jeff Sessions because of Sessions’s recusal from the Russia investigation and said Sessions ought to resign, though Trump reportedly rejected a resignation letter. He has also variously threatened or tried to fire Mueller and Deputy Attorney General Rod Rosenstein, who appointed and is overseeing Mueller because Sessions is recused. In the Oval Office Friday around noon, Trump wouldn’t say whether he had confidence in Rosenstein. “You figure that one out,” he said.
In a tweet Friday morning, Trump said:
The top Leadership and Investigators of the FBI and the Justice Department have politicized the sacred investigative process in favor of Democrats and against Republicans - something which would have been unthinkable just a short time ago. Rank & File are great people!— Donald J. Trump (@realDonaldTrump) February 2, 2018
Not only is the president openly feuding with parts of the executive branch, he elides the fact that the top leadership of the FBI and Justice Department are, with McCabe and Comey’s departures, entirely appointed by his own administration.
If the goal is to purge officials who Trump thinks represent some sort of threat to him, that’s already under way. But Trump also doesn’t have to purge them to achieve what he wants. He just has to create an environment that stifles things he believes represent a threat to him.
The president has been surprisingly open about his desire to release the memo in order to discredit the Russia investigation, even before he had read it. He has been warned time and again against actually removing Mueller, but if he can’t do that, trying to relegate it to politically suspect territory does the trick. He’s used other methods, too, like asking James Comey for loyalty, asking that Comey let Michael Flynn off for lying to the FBI, asking McCabe for whom he had voted, and asking Rosenstein whether he was “on my team.” Furthermore, he has proven surprisingly averse to actually firing people.
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.
The search for an analogue to the Saturday Night Massacre is alluring to both the media and Trump’s detractors because it’s much easier to cover a single, major event like a mass-firing than a slow-rolling erosion like what’s going on, and much easier to rally opposition to it as well. Immediately after the election, my colleague Adam Serwer wrote that the media was completely unprepared to cover a Trump presidency. Journalists who continue searching for a new Saturday Night Massacre and ignore the broader picture will show that one year into Trump’s tenure, they still haven’t caught up.
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