Saturday, May 20, 2017

"Firing Comey Is Worse Than Breaking the Law" -- constitutional scholar and ethicist

Three sharp legal and ethical thinkers -- Laurence Tribe, Richard Painter, and Norman Eisen -- presented an interesting perspective on the firing of FBI Director Comey.  It appeared in USA Today over a week ago.   So much has come out since then, new blockbuster news every day;  but the underlying thinking is still relevant. 

"If President Trump’s shockingly sudden firing of FBI Director James Comey had violated some statute or constitutional provision, our judicial branch could easily have remedied that misstep. What the president did was worse. It was a challenge to the very premises of our system of checks and balances precisely because it violated no mere letter of the law but its essential spirit. No one, not even a president, is above the law. And thus no public official, high or petty, can simply fire those our system trusts to investigate and remedy that official’s possible bribery, treason, or other disloyalty to the nation.

"As virtually every observer not beholden to this president has recognized, the excuses offered in his “You’re Fired” letter to Comey were laughably pretextual. . . .  At this point, it is exceedingly difficult to avoid the conclusion that the president is seeking to cover up wrongdoing on his own part and/or on the part of various close associates; that he is prepared to lie to government officials and to the world about the reasons for actions evidently designed to perpetrate just such a coverup; and that the wrongdoing the president is seeking to conceal is nothing minor or of merely tangential relevance to his office but, on the contrary, may involve collaboration with our Russian adversaries in attacking our democracy at its core.

"Whether the president’s clumsy and seemingly ill-thought-out steps will backfire is impossible to predict. Attorney General Jeff Sessions had promised to recuse himself from all Justice Department matters involving Russian interference with our election, but waded right into the middle of the decision to discharge Comey. Perhaps Sessions will step aside while Rosenstein attempts to redeem himself for his role in the pretense that Comey was fired over missteps in the Clinton email probe. The deputy attorney general could do it by appointing an independent special counsel.     [which he has now done]

"But the constraints under which such a special counsel would have to operate under current law, and the constitutional subservience of any such counsel to the president as head of the executive branch, are a prescription for a replay of an ugly drama: President Nixon fired two attorneys general before finding someone (Robert Bork) willing to fire special prosecutor Archibald Cox — only to be pressured into appointing another special prosecutor, Leon Jaworski, who ended up being as determined and unshakable as Cox.

[RR note:   This was written before the appointment of Robert Mueller as special counsel was made.   The stellar reputation of Mr. Mueller is such that discharging him would be so fraught politically -- in addition to the fact that Trump could not simply fire Mueller directly;  he could order Rosenstein to fire him, and he could refuse to do so.   Then Trump would have to fire Rosenstein -- just like the Nixonian Saturday Night Massacre.   In short, it's possible, but Trump is unlikely to survive it.]

"The other main path is through Congress. Lawmakers are obviously unprepared just yet to initiate impeachment proceedings, but they may be coming closer to creating a bipartisan select committee to carry out the investigation Trump was evidently determined to keep the FBI from conducting. Indeed, even without a new committee, just three Republican senators joining with Democrats can give subpoena power to the Senate Intelligence Committee investigation into what some are calling Russiagate. Then at least one possibly credible body not subject to the president’s discharge power would be on the hunt for the real story of why Trump fired the main investigator on his trail and precisely what he has been trying to hide.

"In the end, the most important task is to credibly track down the details of the global financial entanglements that have ensnared this administration from the outset, and that have led to litigation against Trump under the Emoluments Clauses of the Constitution. That is likely the key to unlocking the mystery of what underlying conduct is so terrible that the Trump administration is willing to tie itself into knots and disgrace itself on the world stage to conceal its conduct.

"Given the bizarre unwillingness of the president to say anything unflattering about Russian President Vladimir Putin, and given his readiness to keep Michael Flynn on as national security adviser for a full 18 days after being warned that Flynn could be subject to blackmail by Putin and his thugs, the truth could lie in what Donald Trump Jr. described in 2008 as all the “money pouring in from Russia,” which he said makes up "a pretty disproportionate cross-section of a lot of our assets … in terms of high-end product influx into the U.S.”

"The most troubling scenario is that the money is closely tied to the Putin government itself and is part of a web of reciprocal relationships between Trump and Putin, which included a collaborative effort to place Trump in the Oval Office.
It hardly needs saying that this explanation, if true, would necessarily lead to the impeachment, conviction and removal of President Trump — assuming the requisite political backbone on the part of the House and Senate. Let us fervently hope that it need not come to this, and that some more innocent explanation will emerge for the truly bizarre developments of the past 100-plus days and counting."

Laurence Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. Richard Painter, vice chair of Citizens for Responsibility and Ethics in Washington and a professor at the University of Minnesota Law School, was chief White House ethics lawyer from 2005 to 2007. Norman Eisen, chair of CREW and a fellow at the Brookings Institution, was the chief White House ethics lawyer from 2009 to 2011. 

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