The Comey Firing: Faculty Weigh in on Legal Questions

When President Donald Trump fired FBI Director James Comey, citing recommendations from the U.S. attorney general and deputy attorney general, it set off a political firestorm—and raised a barrage of legal questions. Given that Comey was leading a criminal investigation into whether Trump’s advisers colluded with the Russian government, some critics drew comparisons to the “Saturday Night Massacre,” when President Nixon fired the special prosecutor investigating the Watergate scandal, along with the attorney general and his deputy, for refusing to comply. Is America on the verge of another constitutional crisis? Was this executive decision an actual threat to the rule of law and democracy?

Leading Columbia Law School experts have begun weighing in on the some of the legal questions since the news broke Tuesday evening. Below are excerpts of their articles and remarks. Come back to this page for updates.  

Philip Bobbit on Deputy Attorney General Rod Rosenstein’s Memo

Writing for Just Security, Philip Bobbitt, the Herbert Wechsler Professor of Federal Jurisprudence and director of the Center for National Security at the Law School, said he found it “very difficult to believe the Rosenstein rationale” served as “the basis for Trump’s decision” to fire Comey.

“So you have this paradox: the president’s alleged acceptance of a recommendation from the attorney general (‘based on the reasons expressed by the Deputy Attorney General’) that is almost certainly not itself based on that rationale. I don’t see how we can maintain the rule of law matters if reason and rationality are dismissed.”  

Jamal Greene on the Watergate Analogy and Checks and Balances

In an interview with POLITICO magazine, Jamal Greene, the Dwight Professor of Law, said that the Saturday Night Massacre allusions are “irresistible but premature. President Trump’s firing of James Comey is not a constitutional crisis—yet. We don’t have all the facts, and there is much Congress could do to learn them.” He also said that “it is crucial that responsible members of Congress from both sides of the aisle are fully briefed—including by Comey himself—on the status of that investigation and how it will be handled going forward. We should reserve judgment until that happens—or doesn't.”

As his comments provoked further comments and questions on Twitter, Greene elaborated on his remarks in a brief interview with the Law School.

 “The words the ‘constitutional crisis’ is not the same as political embarrassment or a potential constitutional problem. To me, it means some abuse of power or constitutional violation that has no remedy within the Constitution. We have a system of checks and balances, where Congress, the President and the Courts limit each other’s powers in various ways. A lot of this depends on how Congress responds in that Congress has to assure that this investigation is not compromised in any way. If Congress is unwilling to do that, then it becomes a constitutional crisis.” 

David Pozen on the Constitutional Crisis Question and the Justice Department

In an interview with the Village Voice, Professor David Pozen, who previously served as an aide to U.S. Senator Ted Kennedy on the Senate Judiciary Committee and as a clerk for Supreme Court Justice John Paul Stevens, said Comey’s dismissal doesn’t meet the definition of constitutional crisis, the president has the legal right to fire the FBI director, and the public hasn’t lost faith in the Constitution.

“If there's a constitutional concern here, it's at one remove…This looks like a preemptive strike against someone who might have wielded oversight and in that sense we should be worried, constitutionally, that we will be less likely to get the production of constitutional accountability from this important office in the future,” Pozen said. 

In a Lawfare post published Thursday, Pozen and co-author Daphna Renan said that Rosenstein's "rushed-out memorandum" also ignored the "Inspector General process and the principles of administrative fairness, independence, and truth-seeking it is meant to embody." Pozen and Renan said that although Trump wasn't legally obligated to wait for the IG's findings on Comey before firing him, failing to do so was "norm-flouting." The result, they added, will be "not only an undermining of the effort to get to the bottom of Russian interference in the presidential race, but also an undermining of the Justice Department’s Office of the Inspector General. This Office has played a crucial role policing abuse and misconduct across administrations..."

Matthew Waxman on National Security Concerns and the Role of Congress

In an interview with the Council on Foreign Relations, Matthew Waxman, the Liviu Librescu Professor of Law and faculty chair of the Roger Hertog Program on Law and National Security, said the firing could pose “grave national security” concerns. Regardless of “past conduct by any Trump associates, or even links between any of them and Russia, Russia conducted serious meddling in the U.S. presidential election. There has been no indication so far that the Trump administration is taking that seriously. There are huge national security stakes here, beyond individual culpability.”

Waxman, who held several senior national security posts in the George W. Bush administration, said Congress has a “critical” role to play. “Questions facing Congress will include how to handle ongoing investigations, whether to create some sort of new and independent investigation, and how to scrutinize the president's pick to replace Comey. Since both houses of Congress are controlled by Republicans, the answers to each of these questions will depend on whether members of the president's own party are willing to buck him.”

###

Originally posted on May 10, 2017