PAT BENIC/UPI/NewscomPresident Donald Trump's decision to fire James Comey as head of the FBI on Tuesday set off a fire storm of political commentary, and with good reason. It's only the second time in the 108-year history of the FBI that the director has been fired by the president (the other was in 1993 when William Sessions was canned by President Bill Clinton over ethical issues), and, more importantly, the firing seemed to coincide with an escalation in the FBI's investigation of ties between the Trump campaign and the Russian government.
Trump apparently wants the Russia story to go away, but he did himself no favors by firing Comey in a way that invites criticism.
Setting aside the politics and optics of Trump's decision to dispose of Comeyboth of which look awful for Trump and have ramifications for Republicans in Congressthere are important legal and constitutional questions about Tuesday's firing.
Did Trump have the authority to fire Comey out of the blue like that? What happens next? Is this a constitutional crisis? I asked some of the top libertarian legal scholars in the country to weigh-in on those questions and offer their assessment of this whole, wild situation.
Here's what they told Reason on Wednesday (responses have been edited for clarity and length):
Ilya Shapiro, senior fellow on constitutional studies at the Cato Institute; editor-in-chief of the Cato Supreme Court Review:
"The legal/constitutional issues here are really easy: there are none. The president has undisputed removal power over the FBI director and he can now appoint a successor. (Until that successor is confirmed by the Senate, deputy FBI director Andrew McCabe is the acting director.)
"In other words, nothing that President Trump has done or is contemplating here is beyond his powers and there is no constitutional crisis. Having said that, the political and policy issues at playnot to mention the opticsare extremely serious.
"Congress may now set up its own investigation, or Deputy AG Rod Rosenstein (at Trump's direction) could appoint an independent prosecutorbut one who by law would also be removable by the presidentor all of these actors could do nothing, leaving the ultimate verdict to the voters in next year's midterm election."
Ilya Somin, professor of law at George Mason University, with a specialty in constitutional law:
"The President has the legal authority to fire an FBI director for almost any reason he wants. I don't think any serious legal commentator doubts that.
"What happens now is that Trump will nominate a replacement for Comey and the Senate will have to decide whether to confirm that person. That may turn out to be an extremely consequential decision."
Somin added that he did not want the first part of his answer to cause libertariansor anyone elseto conclude there is no reason for concern:
"There is a danger that Trump will appoint someone who will look the other way on the Russia investigation (which is looking into allegations of possibly very serious lawbreaking by Trump and his associates), or someone who will condone abuses of civil liberties of the sort we saw in the earlier history of the FBI. Trump's disdain for freedom of speech and his threats to use the power of government to go after his critics are far from reassuring on that score."
Josh Blackman, associate professor of law at the South Texas College of Law in Houston, with a specialty in constitutional law and the U.S. Supreme Court:
"The actions are perfectly constitutional. What happens next is up to the political process. Congress can investigate as it sees fit, and use whatever remedies, up to impeachment, it deems necessary."
On his personal blog, Blackman detailed the crucial difference between Trump's firing of Comey and the so-called "Saturday Night Massacre" in 1973, when President Richard Nixon pushed for the firing of a special prosecutor investigating the Watergate break-in:
"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)."
David Bernstein, professor of law at George Mason University:
"I don't think there's any doubt that Trump has the constitutional and legal authority to fire Comey. As for what comes next, Trump will have to appoint a new FBI Director, who will need to be confirmed by the Senate. If the Senate does its job, it will ensure that the new director is not a Trump crony, and indeed the hearings for that new nominee could shed light on the background to Comey's firing.
"There is definitely no constitutional crisis here. Indeed, by a proper understanding of how the executive branch is supposed to work, it would be absurd to think the president is obligated to keep an official he doesn't want, as they are all essentially his employees/agents.
"I can't really speak to how this will play out politically, but in Nixon's case you had a special prosecutor who was getting close to revealing Watergate related secrets, and Nixon was trying to interfere with the investigation. Here, I don't think it's at all clear that the FBI, and any new FBI director, will be any less aggressive than Comey in pursuing the Russia investigation.
"Moreover, because such an individual will have been confirmed by a GOP Senate and not have Comey's baggage from the campaign, the results of that investigation will have additional credibility."
Todd Gaziano, senior fellow in constitutional law, Pacific Legal Foundation:
"Whether you think Comey's dismissal was justified or not, it is not a 'constitutional crisis' for the head of the FBI to be fired. Our republic and the constitutional separation of powers do not require an FBI director at all. The primary checks on executive error or abuse that the Framers created were political, electoral, and judicial checks that do not require a 'special prosecutor' or other 'independent' figures in the executive branch."
Tim Lynch, the Cato Institute's director of criminal justice projects, highlights Comey's history of conducting "trial by news conference," a tactic that he used against Hillary Clinton last year. Though the removal was ham-fisted, Lynch says, it was probably the right thing to do.
"We can do much better than James Comey. If Trump can repeat the careful process by which he selected Neil Gorsuch for the Supreme Court and secure a fairly swift confirmation vote, this matter will soon be forgotten. If the selection process is mishandled, the political storm clouds will hang over the White House for quite some time."
Excerpt from:
Here's What Libertarian Legal Scholars Think About Comey's Firing - Reason (blog)
- Is Libertarian Gary Johnson a factor in Clinton-Trump matchup ... [Last Updated On: June 12th, 2016] [Originally Added On: June 12th, 2016]
- Hawaiian libertarian [Last Updated On: June 15th, 2016] [Originally Added On: June 15th, 2016]
- CNN to host Libertarian ticket for town hall - CNNPolitics.com [Last Updated On: June 17th, 2016] [Originally Added On: June 17th, 2016]
- Learn Liberty | What is Libertarian? [Last Updated On: June 19th, 2016] [Originally Added On: June 19th, 2016]
- 2016 Libertarian Party National Convention [Last Updated On: June 21st, 2016] [Originally Added On: June 21st, 2016]
- Libertarian Republican - Wikipedia, the free encyclopedia [Last Updated On: June 21st, 2016] [Originally Added On: June 21st, 2016]
- Learn Liberty | What is Libertarian? [Last Updated On: June 21st, 2016] [Originally Added On: June 21st, 2016]
- Libertarian town hall: What to watch - CNNPolitics.com [Last Updated On: June 24th, 2016] [Originally Added On: June 24th, 2016]
- Libertarian Party - Facebook [Last Updated On: June 25th, 2016] [Originally Added On: June 25th, 2016]
- Libertarian Party of Florida [Last Updated On: June 25th, 2016] [Originally Added On: June 25th, 2016]
- How Libertarian candidate Gary Johnson hopes to win over ... [Last Updated On: June 25th, 2016] [Originally Added On: June 25th, 2016]
- CNN town hall gives Libertarian Party an unprecedented shot ... [Last Updated On: June 25th, 2016] [Originally Added On: June 25th, 2016]
- HOME - The Advocates for Self-Government [Last Updated On: July 3rd, 2016] [Originally Added On: July 3rd, 2016]
- Libertarian Reddit: Social News from a Libertarian Point of View [Last Updated On: July 5th, 2016] [Originally Added On: July 5th, 2016]
- Libertarian Party on the Issues [Last Updated On: July 5th, 2016] [Originally Added On: July 5th, 2016]
- Debra J. Saunders - The Libertarian Alternative, Gary Johnson [Last Updated On: July 5th, 2016] [Originally Added On: July 5th, 2016]
- Libertarian Party [Last Updated On: July 5th, 2016] [Originally Added On: July 5th, 2016]
- Home - Libertarian Party of Texas [Last Updated On: July 8th, 2016] [Originally Added On: July 8th, 2016]
- Reason.com [Last Updated On: July 8th, 2016] [Originally Added On: July 8th, 2016]
- Libertarian presidential candidate says he'd 'lose no ... [Last Updated On: July 9th, 2016] [Originally Added On: July 9th, 2016]
- Libertarian Party of Texas [Last Updated On: July 18th, 2016] [Originally Added On: July 18th, 2016]
- Libertarian Party of Alabama [Last Updated On: July 18th, 2016] [Originally Added On: July 18th, 2016]
- Libertarian Candidate Gary Johnson Still Rising, Says New ... [Last Updated On: July 18th, 2016] [Originally Added On: July 18th, 2016]
- Home - Libertarian Party of Ohio [Last Updated On: July 18th, 2016] [Originally Added On: July 18th, 2016]
- Libertarian Party of Illinois [Last Updated On: July 21st, 2016] [Originally Added On: July 21st, 2016]
- Libertarian Johnson defends Melania Trump on speech [Last Updated On: July 21st, 2016] [Originally Added On: July 21st, 2016]
- Libertarian ticket Gary Johnson: Mitt Romney is weighing ... [Last Updated On: July 31st, 2016] [Originally Added On: July 31st, 2016]
- Libertarian candidate Gary Johnson: A vote for Clinton or ... [Last Updated On: July 31st, 2016] [Originally Added On: July 31st, 2016]
- Libertarian Candidates Gary Johnson, Bill Weld Pitch ... [Last Updated On: August 6th, 2016] [Originally Added On: August 6th, 2016]
- Libertarian ticket could spoil Clinton party (Opinion ... [Last Updated On: August 6th, 2016] [Originally Added On: August 6th, 2016]
- Libertarian ticket eyes post-convention opening and ... [Last Updated On: August 6th, 2016] [Originally Added On: August 6th, 2016]
- Welcome to the Libertarian Party of North Carolina [Last Updated On: August 10th, 2016] [Originally Added On: August 10th, 2016]
- Welcome- Libertarian Party of Connecticut [Last Updated On: August 10th, 2016] [Originally Added On: August 10th, 2016]
- Let Libertarian Gary Johnson debate Clinton and Trump ... [Last Updated On: August 10th, 2016] [Originally Added On: August 10th, 2016]
- Libertarian ticket eyes post-convention opening and debate ... [Last Updated On: August 10th, 2016] [Originally Added On: August 10th, 2016]
- Libertarian candidate Gary Johnson hires GOP operative to ... [Last Updated On: August 12th, 2016] [Originally Added On: August 12th, 2016]
- What is The Libertarian Party? | Libertarian Party [Last Updated On: August 16th, 2016] [Originally Added On: August 16th, 2016]
- Libertarian Gary Johnson: 'We should embrace immigration ... [Last Updated On: August 25th, 2016] [Originally Added On: August 25th, 2016]
- Libertarian Presidential Candidate Gary Johnson Asks 'What Is ... [Last Updated On: September 10th, 2016] [Originally Added On: September 10th, 2016]
- The Libertarian Ticket: Johnson and Weld - CBS News [Last Updated On: September 20th, 2016] [Originally Added On: September 20th, 2016]
- Libertarian candidate Gary Johnson has another "Aleppo moment" [Last Updated On: October 1st, 2016] [Originally Added On: October 1st, 2016]
- Why is Gary Johnson still in the race - CNNPolitics.com [Last Updated On: October 1st, 2016] [Originally Added On: October 1st, 2016]
- Chicago Tribune endorses Libertarian candidate Gary ... [Last Updated On: October 3rd, 2016] [Originally Added On: October 3rd, 2016]
- Who Is a Libertarian? | Foundation for Economic Education [Last Updated On: November 17th, 2016] [Originally Added On: November 17th, 2016]
- Libertarian Reddit: Social News from a Libertarian Point of ... [Last Updated On: November 21st, 2016] [Originally Added On: November 21st, 2016]
- The Libertarian Party Platform - A Quick Summary [Last Updated On: December 22nd, 2016] [Originally Added On: December 22nd, 2016]
- Libertarian Party | Libertarian Party [Last Updated On: January 14th, 2017] [Originally Added On: January 14th, 2017]
- Libertarian Party of Bexar County Texas | "Liberty and ... [Last Updated On: January 19th, 2017] [Originally Added On: January 19th, 2017]
- Libertarian Candidates Expose Themselves as Anti-Trump ... [Last Updated On: January 29th, 2017] [Originally Added On: January 29th, 2017]
- 3 Questions for Bernie Supporters - Being Libertarian [Last Updated On: February 6th, 2017] [Originally Added On: February 6th, 2017]
- Libertarians against gas tax - Jackson Sun [Last Updated On: February 6th, 2017] [Originally Added On: February 6th, 2017]
- Libertarian Party Gets Victory in Suit Aimed at the Partisanship of Commission on Presidential Debates - Reason (blog) [Last Updated On: February 6th, 2017] [Originally Added On: February 6th, 2017]
- Libertarian candidates seek Pompeo seat - Wichita Eagle [Last Updated On: February 6th, 2017] [Originally Added On: February 6th, 2017]
- A Warning From A Spanish Libertarian - Being Libertarian (satire) [Last Updated On: February 6th, 2017] [Originally Added On: February 6th, 2017]
- What I Saw at the Anti-Milo, UC Berkeley Riots! - Being Libertarian [Last Updated On: February 6th, 2017] [Originally Added On: February 6th, 2017]
- Libertarian Party Chairman Repeats Lie About MILO Outing Illegals At Berkeley - Breitbart News [Last Updated On: February 7th, 2017] [Originally Added On: February 7th, 2017]
- Why Should a Libertarian Take Universal Basic Income Seriously? - Niskanen Center (press release) (blog) [Last Updated On: February 7th, 2017] [Originally Added On: February 7th, 2017]
- Perfectionism Is Insanity And Impossible To Accomplish - Being Libertarian [Last Updated On: February 7th, 2017] [Originally Added On: February 7th, 2017]
- Updated! Meet the Libertarian-Leaning GOP Texas State Senator[s] Whose Career[s] Donald Trump Wants To Destroy - Reason (blog) [Last Updated On: February 7th, 2017] [Originally Added On: February 7th, 2017]
- Little Libertarians on the Prairie: The Hidden Politics Behind a ... - History [Last Updated On: February 7th, 2017] [Originally Added On: February 7th, 2017]
- Does The United States Lack Innocence? - Being Libertarian [Last Updated On: February 9th, 2017] [Originally Added On: February 9th, 2017]
- Digital Privacy Further Eroded By US Dept. of Justice - Being Libertarian [Last Updated On: February 9th, 2017] [Originally Added On: February 9th, 2017]
- China Begins Talks to Regulate Bitcoin - Being Libertarian [Last Updated On: February 9th, 2017] [Originally Added On: February 9th, 2017]
- Local Libertarians back ballot access bill | Local | mywebtimes.com - MyWebTimes.com [Last Updated On: February 10th, 2017] [Originally Added On: February 10th, 2017]
- BREAKING: NH State Representative Joins Libertarian Party ... - Free Keene [Last Updated On: February 10th, 2017] [Originally Added On: February 10th, 2017]
- Ancapistan - Being Libertarian [Last Updated On: February 10th, 2017] [Originally Added On: February 10th, 2017]
- Libertarian think tanks, Kansas health secretary testify against expanding Medicaid - Topeka Capital Journal [Last Updated On: February 11th, 2017] [Originally Added On: February 11th, 2017]
- Stephen Henderson and Libertarian Shikha Dalmia Debate Future of Healthcare - WDET [Last Updated On: February 11th, 2017] [Originally Added On: February 11th, 2017]
- BTCC Chief: 2-3 Years Before China Regulates Bitcoin - Being Libertarian [Last Updated On: February 11th, 2017] [Originally Added On: February 11th, 2017]
- Cuban Libertarian Activists Arrested By State Police - The Libertarian Republic [Last Updated On: February 11th, 2017] [Originally Added On: February 11th, 2017]
- Libertarians set to become official political party in Iowa - The Daily Nonpareil [Last Updated On: February 11th, 2017] [Originally Added On: February 11th, 2017]
- Libertarian Author Charles Murray Calls for Pause in Low ... [Last Updated On: February 11th, 2017] [Originally Added On: February 11th, 2017]
- Libertarian ticket cost Trump the popular vote | Washington Examiner - Washington Examiner [Last Updated On: February 12th, 2017] [Originally Added On: February 12th, 2017]
- Penn Jillette: The Ideal Libertarian Candidate - Being Libertarian [Last Updated On: February 12th, 2017] [Originally Added On: February 12th, 2017]
- Pence hires libertarian Calabria as chief economist - Politico (blog) [Last Updated On: February 13th, 2017] [Originally Added On: February 13th, 2017]
- Echo Chambers, Rhetoric, and the Political Gray Zone - Being Libertarian [Last Updated On: February 15th, 2017] [Originally Added On: February 15th, 2017]
- Rand Paul, to Libertarians Critical of His Sessions Vote: 'I would ... - Reason (blog) [Last Updated On: February 15th, 2017] [Originally Added On: February 15th, 2017]
- I'm a Libertarian Man, and I Support Feminism. - Being Libertarian [Last Updated On: February 15th, 2017] [Originally Added On: February 15th, 2017]
- Former Libertarian presidential candidate visits alma mater - Standard Online [Last Updated On: February 15th, 2017] [Originally Added On: February 15th, 2017]
- Libertarians split with Trump over controversial police tactic - Fox News [Last Updated On: February 15th, 2017] [Originally Added On: February 15th, 2017]