Pamela Karlan on the Legal Implications of the Comey Firing

In this Q&A with the Stanford Lawyer magazine editor, Stanford Law School Professor Pamela S. Karlan discusses the legal implications of the May 9 firing of FBI Director James Comey.

President Trump fired FBI Director James Comey this week. The firing seems to have been a break with tradition. Can you talk about that—the structure of power—and why the FBI Director has been/should be independent of presidential and Congressional influence, and is only rarely fired?

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Stanford Law Professor Pamela S. Karlan

J. Edgar Hoover was the head of the FBI for nearly a half-century, and accumulated a degree of power that many observers considered problematic. So in the 1970s, as part of a crime control act, Congress provided that the director of the FBI would be appointed by the President and confirmed by the Senate to a single ten-year term, which by definition means that Congress expects directors to serve under at least two presidents. During the discussions leading up to the adoption of this provision, Senator Robert Byrd stated that one of Congress’s goals was to prevent “the transition of the FBI into a political police force or into a politicized organization in any fashion.” So while James Comey is not the first director to be fired – President Clinton fired William Sessions after findings that he had engaged in improper use of government funds for personal items – the directorship, unlike other high-level positions in the Justice Department, is not a job that normally changes hands upon a change in administrations.

Was the firing legal? James Comey was overseeing an investigation into Russian interference in the U.S. Presidential election—and possible collusion with Russia by President Trump and members of his campaign. And AG Sessions, who recused himself from the investigation, reportedly was consulted about the firing. Add to that the President’s public statements in support of Comey, and some have suggested that it appears a bit cloudy. Is there any legal recourse here?

The President is legally entitled to fire the director of the FBI. As James Comey said in his resignation letter today, “I have long believed that a President can fire an FBI Director for any reason, or for no reason at all.” And in contrast to his power over executive branch employees protected by civil service rules, the President can do so without having good cause and without providing the director with any procedural protections. But one of the things we try to instill in our students is an understanding that not everything that is legal in this narrow sense is defensible. The reasons that President Trump gave are patently insincere, even by Trumpian standards, and taken in combination with the timing and the ongoing FBI investigation into interference in the election, the firing is more than “cloudy.” If the firing is intended to obstruct a legitimate criminal investigation, it starts to veer into impeachment territory.

Is the Attorney General’s office the only route to an independent investigation? Is there legal recourse if the Republican controlled government decides not to ask for one?

The Attorney General certainly has the authority, under 28 C.F.R. Part 600, to appoint a Special Counsel and give that person “independent authority” to conduct a criminal investigation. There is no straightforward legal recourse, however, if the Attorney General (or his designee, if he is recused, as Attorney General Sessions would seem to be) refuses to do so. The remedy for a failure would be for the public to put enough pressure on the members of Congress to persuade them to hold hearings, conduct an investigation, or impeach the Attorney General if he refuses to insure an independent investigation. (The Secretary of War was impeached in 1876 for what the U.S. Senate’s historians have called “a pattern of corruption blatant even by the standards of the scandal-tarnished Grant administration.”) And if that can’t be accomplished with the current Congress, the public will have to first elect a new Congress more concerned with these issues.

Some are calling this a Constitutional crisis. Do you agree? If yes, why?

There isn’t a consensus definition of “constitutional crisis.” It is a feature, not a bug, of our Constitution (with a capital “c,” by which I mean the actual document) that we have a unitary executive branch, which means that the President and his (or her) Attorney General have control over federal prosecutions. (In California, as in many other states, the Attorney General is elected separately from the Governor, so there is always the potential for an independent investigation.) It is actually an unanticipated feature of our constitution (with a small “c,” by which I mean our political and governmental structure) that we have national political parties. When the same party controls the presidency and both branches of Congress, many of the checks that the framers thought were baked into our system don’t necessarily work. If the President actually shuts down a meaningful investigation into whether he or members of his campaign colluded with a foreign government, or if a presidential candidate can get elected in part as a result of foreign interference in our election process, those would be constitutional crises under virtually any definition of the term. And even more so, those would signify a constitutional crisis if either Congress or the American people sit idly by.

Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School. One of the nation’s leading experts on voting and the political process, she has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund, and a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice (where she received the Attorney General’s Award for Exceptional Service – the department’s highest award for employee performance – as part of the team responsible for implementing the Supreme Court’s decision in United States v. Windsor).