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Yesterday, the National Constitution Center recorded an “extra” podcast on very short notice, addressing the question “Is the firing of James Comey a ‘constitutional crisis’? I debated David Cole, the national legal director of the ACLU. As always, Jeffrey Rosen was our host. You can listen here, or read my in depth remarks here:

Earlier today I recorded a Podcast for the National Constitution Center with Jeffrey Rosen and David Cole. The topic was whether the firing of Comey created a “constitutional crisis.” My short answer was No. A constitutional crisis requires, at a minimum, that there must be a violation of the Constitution. Trump was entirely within his authority to remove Comey at will. He didn’t even need to give causes. That he gave causes, which are probably pretextual, is irrelevant. Cole didn’t disagree with any of this, but suggested that there are certain foundational or democratic norms that were violated by Trump’s firing.

As I was listening to his answers, I had flashbacks to debates last year over whether the Senate had a constitutional duty to give Merrick Garland a vote. Once again, my short answer was No. The President has the duty to nominate judges to the Supreme Court, and the Senate can exercise its advise and consent however it sees fit. If the Senate, pursuant to its own rules, decides not to afford a nominee a hearing or vote, such that it expires at the end of the term, then that is the Senate’s advice and consent. Last year a New Mexico lawyer actually filed a lawsuit, seeking to force the Senate GOP to act of Garland’s nomination. He claimed that the Republicans had “created a constitutional crisis that threatens the balance and separation of power among our three branches of government.” Again, there can be no constitutional crisis when the Constitution is not being violated.

As Jack Balkin and Sanford Levinson noted in a 2009 article, the phrase “crisis” is overused, and is at risk of losing any meaning:

The difficulty, however, is that the language of crisis is ubiquitous, applied to controversies great and small. There is hardly a disagreement in American law, however slight, that someone will not label a “constitutional crisis.” . . .

An important 2002 article by Keith Whittington noted that almost three thousand articles in the press used “constitutional crisis” in reference either to the impeachment of Bill Clinton (1026 articles) or to the controversy surrounding the 2000 election (1901 articles).

…

People have evoked the expression “constitutional crisis” so often that it is in danger of becoming synonymous with almost any deeply felt sense of conflict or urgency, as illustrated by Chief Justice Roberts’s plaintive cry that he deserves a higher salary. Perhaps it has become no more than a marker of emotional intensity, the equivalent of pounding the table and marking one’s degree of upset about some state of affairs in the world.

My answers so far have been negative–what a “constitutional crisis” is not. Then what is a constitutional crisis? For sure, it has to involve a violation of the Constitution, but that is not enough. The Supreme Court finds every term that this action or that law violates the Constitution. And it isn’t even enough when Congress and the President disagree about the constitutionality of some action. In that case, the appointments at issue in Noel Canning would have triggered a “constitutional crisis.” It didn’t. Balkin and Levinson observe:

People generally use the term “constitutional crisis” to describe periods when institutions of government are clearly in conflict. But the mere existence of conflict, even profound conflict, cannot be the definition of crisis. Government institutions are always in conflict. Every year the Supreme Court hears cases, and the losers usually proclaim that the Court has grievously overstepped its boundaries.

Likewise, Balkin and Levinson find (as do I) that the firing of Archibald Cox was a “political crisis” rather than a “constitutional one.” If Justice Scalia’s dissent in Morrison v. Olson was correct (and I think it was) then Robert Bork was correct that he could fire Cox, even without cause. Not even impeachment, they argue, amounts to a constitutional crisis, because the House and Senate are using “procedures specifically written into the Constitution.” They are right. Nor does Bush v. Gore, they write, rise to the level of a constitutional crisis because “Al Gore almost immediately treated the Supreme Court decision as juridically valid” and Bush’s inauguration “took place without serious incident.” Right again.

Balkin and Levinson offer a framework to understand constitutional crises. It is a very, very high threshold:

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. The first two types were identified by Machiavelli in the quotation that begins this Article. Type one crises arise when political leaders believe that exigencies require public violation of the Constitution. Type two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this task.

(1) the 1800 election stalemate, which began as a type two crisis because of the poor design of the presidential election rules and became a type three crisis when various states threatened to march their militias to Washington to settle the matter; it was resolved by Jefferson’s election;119
(2) the battle over the “tariff of abominations” that produced nullification resolutions in South Carolina, resolved by Andrew Jackson’s military threats and the passage of a compromise tariff that allowed South Carolina to back down;120
(3) the 1860-1861 secession crisis that led to and was resolved by the Civil War (itself a constitutional crisis);121
(4) the 1865-1868 struggle over Reconstruction, which involved expulsion of southern senators and representatives, military governorship of the South, and impeachment of Andrew Johnson, resolved by Johnson’s acquittal and his acquiescence in the ratification of the Fourteenth Amendment;122
(5) the 1868-1876 struggle over Reconstruction, which featured the successful violent insurgency of the Ku Klux Klan and similar devotees of the ostensibly defeated Old Order and the disputed 1876 presidential election; it was resolved by the appointment of an election commission, and more importantly, by the “Compromise of 1877” that led to the restoration of white rule;123 and
(6) the Little Rock crisis of 1957, resolved by the dispatch of federal troops to integrate the Little Rock schools.124

You may or may not agree with Balkin and Levinson’s framework, but at a minimum it offers a way to think about the issue facing us. The Republic will survive James Comey’s unemployment. Indeed, Republicans and Democrats alike agree that the FBI is better off without Comey. The Constitution was complied with. Our institutions retain able to check Trump. And this too shall pass.

Yesterday, 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.  (No you can’t get up and go to the bathroom during breaks, as you are wired).

This was a very, very difficult assignment, as I hadn’t prepared at all to discuss this topic. Believe it or not, cable news is really, really tough. I spend, on average, an hour preparing for a four minute spot on television. Some (not all) shows even send you the questions in advance, so you can have answers at the ready. Whether questions are provided or not, I prepare a number of stock answers, which I rehearse over and over again. The dirty secret of cable news is that it is seldom necessary, or even desirable, to actually answer the question.  I have such a short time to make my points succinctly, that I don’t leave much to chance.  In addition to my words, appearance matters. I think carefully about my diction, posture, and keeping my eyes focused on the camera so it doesn’t look shifty. There is so much going on, between the lighting, makeup, and audio, that your focus has to be intense. When you watch a professional like Jeff Toobin deliver succinct commentary on the fly, it looks so simple. But it isn’t.

This was not my best performance, but I am proud of how I did under the circumstances. Indeed, if you look closely, you can see the glimmer of my laptop reflecting on my eye. I had my computer open in front of me, so I could track the unfolding story throughout the hour. This was how I pulled the quote from Judge Silberman out during the piece, to great laughter:

Who the hell does Mr. Comey think he is—a legal Clark Kent, emerging in tights from a very tall telephone booth to save the country?

Alas, as a result, I am on camera looking down, which is not good. (You do not see what is being broadcasted, so you have no idea when you are, and are not on camera).

My answers appear at 0:01, 7:24, 10:13, and 14:35.

I spoke with Tommy Tucker on WWL in New Orleans about James Comey’s firing. You can listen here:

Eric Posner called Trump’s firing of Comey “an ingenious bit of Machiavellian jujitsu.” To level up, Trump should think big league about Comey’s replacement. On the excellent Lawfare Podcast, Ben Wittes suggested that Merrick Garland would be a perfect selection for FBI Director to. That selection would also have the effect of freeing up a seat on the all important D.C. Circuit (though not compelled by the Incompatibility Clause). By why stop with the second highest court in the land?

To take a page from LBJ’s playbook, Trump could offer the Directorship to a sitting Supreme Court justice. Recall that Johnson asked Justice Goldberg to resign to serve as ambassador to the United Nations, in order to open up a vacancy for his crony Abe Fortas. Likewise, Johnson appointed Ramsey Clark as Attorney General to force Tom C. Clark to resign, in order to appoint Thurgood Marshall to the Court.

What if Trump opted to select a sitting Supreme Court Justice to serve as FBI Director? The idea is not unprecedented. After J. Edgar Hoover’s death, there was some buzz (as Tony Mauro recounts) that Byron White would be appointed to replace him. Appointing a Justice would assuage concerns about judicial independence, and, in the process, open up another vacancy.

The prospect of FBI Director Ginsburg–who would have the power to go after Trump–will make the resistance swoon, but that is likely a non-starter. Perhaps Justice Breyer’s unwavering commitment to Democracy could nudge him to step down from the Court and step up for the Country. This is also unlikely, as he knows his seat would be replaced by a far more conservative jurist. As for Justices Kagan and Sotomayor, they are only getting started, so they are staying put.

That brings us to the conservative members. Justice Thomas, who has been rumored to want to step down, would under no circumstance subject himself to another Senate confirmation. So that’s out. I think the same could be said for Justice Alito, who, after his State-of-the-Union nod, wants nothing to do with Congress.

That leaves Chief Justice Roberts and Justice Kennedy. Both selections would, in Posner’s terms, be Machiavellian in different ways.

Rumors swirl that Justice Kennedy wants to step down. A huge inducement would be to give him the unilateral authority he alway sought to pursue Justice.  Perhaps that could nudge him to step aside at a time when the nation needs him the most. Having single-handedly protected abortion, same-sex marriage, and affirmative action, now he can save the rule of law. After nearly three decades on the Court, he could pursue this new mission during the twilight of his august career. Further, his confirmation hearing would be a walk in the park. Democrats are forever indebted to him for creating a host of constitutional rights out of whole cloth, and Republicans would be thrilled to open up the seat for Bill Pryor.

Or, Trump could swing for the fences. If the President is looking for someone with a truly independent streak, who can restore the FBI’s prestige as an “institution,” and who avoids divisive partisanship, even to his own detriment, look no further than Chief Justice John Roberts. Over the last decade, at one point or another, Roberts has infuriated the right and the left. Yet, throughout it all, he has maintained poise and stayed out of the limelight. Plus, he has already demonstrated his ability to waltz through confirmation hearings, and skate circles around befuddled Senators. Most importantly, Trump would clear up one seat, and with Kennedy and Trump on the wings, allow him to appoint a total of four new Justices. That would be the art of the deal.

(This post was written in jest, though in this moment, reality is often stranger than fiction).