In the immediate aftermath of President Trump’s decision to fire FBI director James B. Comey, what do we know? Three quick points:
It’s legal. According to a series of Supreme Court decisions interpreting “the executive power,” presidents generally have the authority to remove any political appointee in a “line” agency at will, although Congress can protect appointees serving in independent regulatory commissions. Under certain circumstances, prosecutors can fall under the second category — for instance, the Supreme Court’s 1988 Morrison v. Olson decision held that Congress could constitutionally create an office of independent counsel and make its occupant very hard to fire. But FBI directors are part of the Justice Department hierarchy. While they are appointed to a 10-year term, they clearly serve at the pleasure of the president.
Both provisions are the unintended legacy of J. Edgar Hoover, who led the Bureau of Investigation and then its successor organization, the FBI, for nearly 50 years — from 1924 to his death in 1972. Reacting to Hoover’s long and controversial tenure — and to some agency actions during the Watergate scandal — Congress put a provision in the Crime Control Act of 1976 that limited the FBI director’s term to 10 years. (As of 1968, Congress had already put into law a requirement that the Senate must confirm any of Hoover’s then-speculative successors.)
The 1976 act also prevents reappointment of an incumbent, though this was waived in 2011 when Robert Mueller’s term as director was extended for two years by special statute. He left in 2013, and was succeeded by Comey, who was confirmed by a 93-1 vote of the Senate on July 29 of that year.
As a useful Congressional Research Service report observes, “There are no statutory conditions on the President’s authority to remove the FBI Director.” But it’s fair to say that the point of the fixed term is to impose political constraints on that authority. Indeed, only one sitting FBI director has been fired by a president — William Sessions, by Bill Clinton, in July 1993. Sessions, however, was under fire for a number of ethical violations, including pressuring the government to pay for improvements at his house and for his wife’s travel expenses. Comey’s firing offense, in theory, is to have mishandled the investigation into Hillary Clinton’s use of a private server for her State Department email correspondence.
It’s not Watergate, exactly. My Facebook feed is suddenly full of pictures of Archibald Cox, the special prosecutor appointed by Attorney General Elliot Richardson to investigate Watergate. Richardson himself had been appointed to replace Richard Kleindienst, who resigned as attorney general in part because his personal relationships with those accused of wrongdoing in Watergate made it difficult for him to serve as an impartial prosecutor. Richardson, in turn, was pressured by the Senate during his confirmation proceedings to commit to an independent investigation of the matter. He agreed — and after “numerous” (perhaps more than a dozen) candidates for the position had declined the role, Richardson appointed Cox, who had served as solicitor general in the Kennedy administration.
When Cox resisted President Nixon’s efforts to retain control of the White House tapes that would eventually doom his presidency, Nixon demanded that Richardson fire him. Instead, Richardson resigned, as did his deputy William Ruckelshaus; third-in-command Robert Bork eventually carried out the order, arguing that legally it was the president’s prerogative to dismiss his subordinates. (As a result, Cox’s successor, Leon Jaworski, demanded and received explicit independence from the president in the form of a customized regulation, something that allowed him to successfully sue Nixon for the tapes’ release a few months later.)
One can see the parallels. Cox’s firing set off a public firestorm, seemingly confirming that Nixon feared what his investigation might reveal. The fact that Trump’s letter removing Comey spends a full paragraph praising himself for not being under investigation seems likewise to protest too much.
But Cox was normatively, if not statutorily, far more independent of the president than was Comey. He had been appointed, with Nixon’s grudging acquiescence, to do what he was then fired for. And while in 1973 the attorney general and deputy attorney general strongly objected to Cox’s dismissal — to the point of resigning — in the present case those officials are on the other side of the matter. Arguments that this simply measures a moral chasm between Richardson and Ruckelshaus versus Jeff Sessions and Rod Rosenstein are complicated by Democrats’ own condemnation of Comey’s behavior during the 2016 campaign, the very behavior cited as the rationale for his firing.
That doesn’t make it a good idea. Nixon suspected immediately that Cox — given his Democratic background — would go on a partisan crusade. Comey briefly endeared himself to Democrats in the famous 2004 “hospital room” showdown with the Bush White House, when he refused (temporarily) to sign off on the administration’s efforts to skirt the Foreign Intelligence Surveillance Act.
But his 2016 decisions regarding the Clinton investigation were widely praised by candidate Trump and then-Sen. Jeff Sessions. Their complaints about him then were not that he had wandered too far from Justice Department supervision but that he had not demanded to “lock her up” vigorously enough. And so the timing and rationale of Trump’s decision, with Comey fired for the supposed due process violations Trump and Sessions previously lauded, seems far more convenient than principled.
Examined more broadly, an important result arose from Hoover’s dubious tenure and from the Watergate era: a norm and expectation that the FBI should always pursue its investigations independently, even — or especially — when the executive office itself has been suspected of corruption. Comey’s firing does violence to that norm, putting the bureau right back in the political firing line. Benjamin Wittes and Susan Hennessey put it this way on Lawfare:
There is no question that the President has the legal authority to remove the FBI director. But there’s also no question that removing the FBI Director in the midst of a high-stakes investigation of Russian influence in the inner circle of the President’s campaign and White House is a horrifying breach of every expectation we have of the relationship between the White House and federal law enforcement.
Any exercise of presidential power is a matter of both law and political calculation. And firing Comey seems likely to strengthen, rather than defuse, demands for investigation into the Trump campaign’s ties to Russia. Members of Congress are already calling for the appointment of an independent prosecutor to oversee that investigation. Suspicions that Comey’s firing was an attempt to muzzle the FBI will surely complicate the confirmation hearings of any new director.
Trump has the formal authority to act in this case. But as Richard Neustadt long ago observed, the exercise of the power to command often masks political weakness.