Tonight, I was scheduled to go on Making Money with Charles Payne at 6:10 ET to talk about sanctuary cities. About 20 minutes beforehand, the news of James Comey’s firing blew up. I was convinced I would get bumped. Instead, the producers asked me to join the program to talk about Comey. I was in the chair for the full hour, offering some basic constitutional commentary about the President’s removal power. During commercial breaks, I managed to type out this statement for Politico Magazine, in response to the question of whether this is a “constitutional crisis.” In a word, no:
‘Trump’s actions were entirely constitutional’
Josh Blackman is a constitutional law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.
Under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional. Indeed, the termination was accompanied by a fairly elaborate set of reasons by the deputy attorney general.
As for whether there is a crisis, we must keep in mind that Comey’s replacement must be approved and confirmed by the Senate. Both Republicans and Democrats will have a say in who heads the agency going forward. At bottom, this is a political question, which ultimately the electorate can decide.
Further, for those drawing analogies to the Saturday Evening Massacre, recall that Nixon never actually fired anyone himself. Instead, he had to ask a subordinate to fire the special prosecutor for cause. Comey was fired by the President, directly, at will (though plenty of causes were given). I wrote about this issue after Yates was fired:
Let’s review the facts. In 1973, Attorney General Elliot Richardson appointed Archibald Cox as an independent special prosecutor to investigate the break-in at the Watergate Hotel. Cox, a former solicitor general, issued subpoenas to President Nixon for taped Oval Office conversations. Nixon refused. Under the law in effect at the time, the president could not fire the special prosecutor directly. Rather, the attorney general could fire Cox, but only “for cause,” which required some neglect of duty. In other words, the prosecutor could not be fired because his investigation came too close to the Watergate cover-up.
After ignoring the subpoena, on Saturday, Oct. 20, 1973, President Nixon ordered Attorney General Richardson to fire Cox. However, the prosecutor had not engaged in any malfeasance, and there was no “cause” to terminate him. Thus, the president’s order was against the law. Richardson refused to comply, and instead resigned. Shortly thereafter, Deputy Attorney General William Ruckelshaus assumed the position of acting attorney general. He too refused to fire Cox, and instead resigned. Third in line was Robert Bork. The solicitor general, now the acting attorney general, believed the president’s order was constitutional and appropriate. Bork complied, and fired the special prosecutor. It was a dramatic episode in constitutional history that gave rise to the independent counsel statute, and two decades later, President Bill Clinton’s impeachment.
As I noted on Fox Business, even if a special prosecutor is appointed, that prosecutor would still be subject to removal by Attorney General Jeff Sessions. But since Sessions has recused, the special prosecutor would be subject to removal by the Deputy Attorney General.