Here's What Libertarian Legal Scholars Think About Comey's Firing

President 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 Comey—both of which look awful for Trump and have ramifications for Republicans in Congress—there 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 play—not to mention the optics—are extremely serious.

Congress may now set up its own investigation, or Deputy AG Rod Rosenstein (at Trump’s direction) could appoint an independent prosecutor—but one who by law would also be removable by the president—or 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 libertarians—or anyone else—to 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.”

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.”