Pamela Karlan on the legal implications of the Comey firing

Pamela Karlan
Pamela Karlan

In this Q&A with Stanford Lawyer, Law School Professor PAMELA KARLAN discusses the legal implications of the May 9 firing of FBI Director James Comey.

President Trump’s firing of FBI Director James Comey seems to have been a break with tradition. Can you talk about that – the structure of power – and why the FBI director has been/should be independent of presidential and congressional influence, and is only rarely fired?

J. Edgar Hoover was the head of the FBI for nearly a half-century, and accumulated a degree of power that many observers considered problematic. So in the 1970s, as part of a crime control act, Congress provided that the director of the FBI would be appointed by the president and confirmed by the Senate to a single 10-year term, which by definition means that Congress expects directors to serve under at least two presidents. During the discussions leading up to the adoption of this provision, U.S. Sen. Robert Byrd stated that one of Congress’ goals was to prevent “the transition of the FBI into a political police force or into a politicized organization in any fashion.” So while James Comey is not the first director to be fired – President Clinton fired William Sessions after findings that he had engaged in improper use of government funds for personal items – the directorship, unlike other high-level positions in the Justice Department, is not a job that normally changes hands upon a change in administrations.

Was the firing legal? James Comey was overseeing an investigation into Russian interference in the U.S. presidential election – and possible collusion with Russia by members of President Trump’s campaign. And AG Sessions, who recused himself from the investigation, reportedly was consulted about the firing. Add to that the president’s public statements in support of Comey, and some have suggested that it appears a bit cloudy. Is there any legal recourse here?

The president is legally entitled to fire the director of the FBI. As James Comey said in his resignation letter today, “I have long believed that a President can fire an FBI director for any reason, or for no reason at all.” And in contrast to his power over executive branch employees protected by civil service rules, the president can do so without having good cause and without providing the director with any procedural protections. But one of the things we try to instill in our students is an understanding that not everything that is legal in this narrow sense is defensible. The reasons that President Trump gave are patently insincere, even by Trumpian standards, and taken in combination with the timing and the ongoing FBI investigation into interference in the election, the firing is more than “cloudy.” If the firing is intended to obstruct a legitimate criminal investigation, it starts to veer into impeachment territory.

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