Trump’s Constitutional Crisis

Yuri Gripas/Reuters
Attorney General Jeff Sessions with now-fired FBI Director James Comey at a meeting of federal law enforcement officials at the Justice Department, Washington, D.C., February 2017

James Comey is no saint. But thanks to Donald Trump, he is now a martyr. On May 9, in a twist that would have seemed far-fetched even on House of Cards, President Trump fired Comey as director of the FBI on the recommendation of Jeff Sessions, his attorney general. According to the administration, Trump did so not because Comey was investigating the possible collusion of Trump campaign officials with the Russian government but because of how Comey mishandled the investigation of Hillary Clinton’s private e-mail server.

This nakedly concocted justification has caused deep alarm among leading members of both parties in Congress. If the president and his attorney general are firing the FBI director because of the FBI’s investigation into the campaign that got the president elected—a campaign in which the attorney general had a direct part—it amounts to an obstruction of justice and an attempt to place the president above the law.

This is a constitutional crisis. The only way forward is to ensure an independent and credible investigation into the Trump campaign’s ties to Russian meddling in the election and the administration’s efforts to obstruct such an inquiry. This could be done by a special prosecutor or a select congressional committee or both.

The indications of unlawful behavior by the administration are strong. On March 2, Sessions expressly committed to recusing himself from the FBI’s Russia investigation after it was reported that he had failed to disclose meetings with the Russian ambassador while advising Trump’s campaign; so he should have had zero involvement in any decision affecting the investigation. Yet he did not recuse himself from the task of firing the man in charge of that very investigation. In fact, administration officials said Attorney General Sessions “had been charged with coming up with reasons to fire him,” and Sessions directed his newly appointed deputy, Rod Rosenstein, to write a memo justifying Comey’s dismissal.

Rosenstein appears to have conducted no original inquiry into Comey, but instead opportunistically cobbled together criticisms of his actions in connection with the Clinton e-mail investigation before Trump took office. Many commentators, myself included,* argued last fall that Comey’s actions were doubly improper. When he closed the investigation into Clinton’s e-mails, after finding no evidence of criminal wrongdoing, he should not have held a press conference to excoriate her as “extremely careless.” And when, just eleven days before the election, he briefly reopened the investigation upon learning that some Clinton e-mails had been discovered on the laptop of Huma Abedin’s husband, Anthony Weiner, he should not have made that fact public, as it had a real risk of affecting the impending election.

However, Trump and his advisers notably did not previously share these…



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