Donald Trump

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

And why they're worried about what might come next

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PAT BENIC/UPI/Newscom

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."

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."

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  1. DanO? Hot take on how George Mason and CATO are just big Trump fans anyways?

    1. I wonder why Comey’s involvement with a money laundering bank is never mentioned.

      http://classicalvalues.com/201…..-bank-ftm/

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  2. “In other words, nothing that President Trump has done or is contemplating here is beyond his powers and there is no constitutional crisis.”

  3. So it’s completely and unequivocally legal, but the optics are bad because literally anything Trump says or does is somehow viewed through the wholly manufactured lens of ‘Trump works for Putin’. Got it. I’m sure Trump not having a Deputy Director until last week had nothing to do with it at all. Right?

    As I peer into my Crystal Ball, I see the government hiring a special prosecutor to make the problem ‘go away’ but then the Democrats will crow about how there is fire under all the smoke they’re blowing.

    It boils down to a fishing expedition for some type of crime, even though they wouldn’t be able to use that to impeach him anyway. Freeze the administration with scandal for 4 years, elect a democrat to make the screaming stop. Seems legit.

    And for the record, I have no problem with a frozen government but I suspect whomever runs as a Democrat next time around will be one of the new breed of Uber-statists. Bernie’s showing in the last election was either a fluke as a result of Clintons deep unpopularity, or a real shift towards true Socialism on the left. We’ll see.

    1. It’s especially rich complaining about unspecified business dealings with Russia, when Hillary had very well specified business dealings with a lot of “donors” and had very specific problems with her email server.

      Fuck I hate politics in a coercive government. Imagine how much nice life would be if these partisanal hacks could keep their bickering to voluntary associations and leave the rest of us alone. They’d shut up in a hurry without the possibility of influencing teh single monopolistic coercive government. What would be the fun of screaming at the choir when everybody else is ignoring them?

      1. Clinton helped sell uranium to Russia. That would have been treason in 1984. Yet this cunt is allowed to continue life unfettered. These are fucking facts. Yet there is non-stop panshitting as of yet, no one has been able to show.

        1. helped sell??

          She fucking profited from it.

        2. Could you explain how Clinton could have been charged with treason for doing that in 1984? Do you also believe Edward Snowden could be charged with treason?

    2. how’s the clinton foundation this year?

  4. “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.”

    This gets it exactly right.

    Why would Trump trust Comey to oversee an investigation into Trump’s campaign?

    Comey is in charge of a big chunk of what Reason staff have referred to as “the deep state”, and they’ve been undermining Trump’s attempt to form a cooperative relationship with Russia on Syria and ISIS since before Trump became president.

    “There’s a lot of hypocrisy going around,” Paul said, pointing to Sen. Charles Schumer’s (D-NY) criticism of Comey from earlier this year and Secretary Hillary Clinton’s recent claim that Comey’s public disclosures about the FBI investigation into her private email server helped tilt the election to Trump.”

    —Rand Paul, two stories down.

    This is the other half of the truth.

    Watching Liz Warren and John McCain go after Trump over trying to form a cooperative relationship with Russia is watching the leading progressive Democrat candidate try to show off in front of former Hillary donors and a died in the wool neocon try to throw a monkey wrench in Trump’s relationship with Russia because it might get in the way of a hoped for U.S. invasion of Syria.

    A box on both their houses.

    1. He’s only mostly dead-in-the-wool.

      1. dyed, died, the princess Di’d: it got in the wool, there, somehow.

  5. There are important legal and constitutional questions about Tuesday’s firing.

    Really? What are they? None of the scholars quoted mentioned any.

    1. You don’t think “Was it legal?” and “Was it constitutional?” are important questions?

      1. The answers to your important questions are “yes” and “yes”.

        1. No, no. They’re “Yes, but…”

          It’s great to see after 8 years of justifying every misdead by Obama that the Russian conspiracy theory is the hill Reason picked to die on.

          1. NOW we’re worried about the constitution. Because this boss doesn’t use rhetoric and guarded words to lie about intent. The previous one talked about togetherness and compassion and for the good of all.

            Just because they do the same things doesn’t mean the same thing if intent is different!

      2. They’re important if you’re ignorant of the constitution because you missed a couple weeks of grade 4 and need someone else to spoon feed you an answer rather than spend a few minutes reading the whopping 15 pages, including amendments, to find out.

  6. In related news, 50% of libertarian scholars are named Ilya.

    1. Much like 50% of the men from U.N.C.L.E.

    2. There you go. How much more proof do you need of a Russian connection?

    3. I wonder what sweetener they like in their Coke.

  7. Did Trump have the authority to fire Comey out of the blue like that? What happens next? Is this a constitutional crisis?

    All of the answers to these questions were obvious and didn’t need the input of “libertarian legal scholars”

    They were

    1 – of course
    2 – he appoints someone new
    3 – and no

    I sincerely doubt having a slew of hand-picked experts explain this is going to stop anyone from public-pants-shitting

    The only thing that merits any real question is ‘what are the political consequences?’ Given that the GOP has both houses, and there’s not much popular concern over Comey from GOP voters, I doubt there’s much there either.

    If you want to continue frothing about there being some “Russian” angle here, by all means, write those stories if you think there’s any substance there. But simply insinuating that there is, and pretending that there’s some obvious Nixonian conspiracy to evade justice going on, just makes you look silly.

    1. I find the more apt comparison to be Herbert Hoover since we’re now into the realm of the so-called ‘Deep State’ digging up, and saving, dirt on political opponents through their boundless wiretapping operations. Then they conveniently ‘leak’ that information whenever they want through any number of news organizations that don’t have one shred of integrity.

      Of course, that story is 95% buried in all the noise. Because Russia, or collusion or something. Whatever you do, don’t bring up FISA!

      1. Did you mean J Edgar?

        1. Nope. All those homeless camps during the depression were wire tapped. Look it up.

    2. “All of the answers to these questions were obvious and didn’t need the input of “libertarian legal scholars””

      The children at Reason use the big crayons.

  8. 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)

    An investigation that’s been going on for six months with no evidence. AKA a fishing expedition.

    or someone who will condone abuses of civil liberties of the sort we saw in the earlier history of the FBI.

    You mean like Jim Comey? LOL, you don’t have to go very early in the FBI’s history to find that.

    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.

    When did that happen? Maybe he has Trump confused with Obama?

    1. “An investigation that’s been going on for six months with no evidence. AKA a fishing expedition.”

      When you listen to progressives explain the situation, it gets really complicated:

      You see, everybody who thought the Obama administration was using our intelligence services to investigate the Trump campaign during the election is a paranoid nutjob.

      On the other hand, Obama’s investigation into the Trump campaign also turned up damning evidence that shows the Trump campaign coordinating with Russia.

      I mean, it seems “complicated” to me, but to a progressive–being able to believe both of those things at the same time with equal conviction comes as naturally to them as anything. It’s part of what makes them superior.

      The rest of us aren’t smart enough to hold mutually conflicting beliefs like that, and that’s why we’re all a bunch of stupid rednecks.

      1. It’s my understanding and belief that the NSA records and stores every electronic communication within the United States which means we’re all being spied upon at all times and therefore there isn’t individual targeting per se. We’re all targets. Once an individual is the subject of a national security investigation the investigators may then obtain warrants to access those stored electronic communications. I could be wrong but that’s how I live my life with the understanding that anything I say over the phone or on the internet is filed away under my name.

        1. Your understanding is poor. The feds don’t have nearly enough storage for that.

          1. Uh, you should try looking up the nice, shiny data center the NSA built in Utah. Yottabytes of space. Yes, they invented a new word to describe the amount of space.

            1. The entire storage industry ships about 400 EB per qrtr today. 1 YB is 1million EB. The rest is left as an exercise for the reader.

  9. I nominate Sally Yates for Director.

    1. Sally makes Sheriff Clarke look good.

  10. Serious queatiin: what legal issues are at play in the Russia ties investigation. Is it just election law? Illegal campaign contributions in kind, as it were?

    1. Presumably the logan act which was only violated by ted kennedy.

      1. We don’t report on that, sir. He was the Lion of the Senate. Any transgressions to undermine our government under multiple presidents was for the good of us.

        1. Which is worse? UNDERmining the government or leaving your date UNDER water?

          1. Why choose when you don’t have to?

          2. That was classic!

    2. Serious queatiin: what legal issues are at play in the Russia ties investigation. Is it just election law? Illegal campaign contributions in kind, as it were?

      None. There are absolutely none at all.

      There are no real charges, no real allegations. Nothing.

      They are, quite literally, saying, “he coulda done X, or R, or 9” and hoping that someone will accept the noise they’re making as evidence of …….something…..anything

      Because Trump won the election. And that just couldn’t really happen.

      1. True. Trump is being called a “Commie lover” the way anyone that disagrees with a liberal is called a racist, homophobe, Islamaphobe or whatever word a weak minded liberal with no real facts uses.

    3. I thought they were investigating the Russians in advance of giving them a Pulitzer for doing the job the journalists are supposed to be doing.

  11. Suppose Trump was the subject of a criminal investigation would Trump have the legal authority to impede that investigation through threats of firing or bribes of keeping a job? Is the President above criminal law? Do we rely upon impeachment to rid ourselves of a criminal president or may he be arrested while in office?

    1. Does a president have legal authority to violate existing law?

      No.

      But the only way you remove him from office is impeachment.

      Obama violated the letter of multiple laws while in office. He just called them “waivers” even though he had no statutory authority for such action.

  12. “Did Trump have the authority to fire Comey out of the blue like that?”

    Yes.

    ” What happens next?”

    Who the fuck knows. Why are you so fucking stupid?

    ” Is this a constitutional crisis? ”

    Only in the stupid imaginations of a Reason editor. I guess 400 words of anyhthing had to be posted. Seriously, how fucking incompetent do you have to be before some shitcans the entire staff and just start over?

    The Russia thing won’t die cuz that is all the media has.

    1. Dare I say: derp?

    2. The Russia thing won’t die cuz that is all the media has.

      That’s funny it seems your little monkey brain forgot all about that Trumpdon’tcare healthcare disguised as a tax cut for billionaires Republican clusterfuck we were all talking about just before this latest puke feast from President Disgusting Fat Piece Shit. Amazing.

        1. “Holy shit, look at that sick burn by one of my 4 other socks”

          -DanO

          It would be funny if it weren’t just so motherfucking sad.

          1. Hi Troy! New sock accuses others of socking. Sad!

      1. Tell me again how Obamacare wasn’t to the benefit of insurers? Is this where you again tell me about the caps on what they could earn while you quickly ignore the huge cash infusions they received above the caps to try and keep it afloat?

        If you’d like to seriously talk about what healthcare is versus insurance we can. We haven’t been paying for insurance as your first clue.

      2. Your epidumbass is showing.

  13. There is no 100 and some year history. Hoover left in 1973 if I recall. That’s when the FBI came under Executive Branch control. So 44 years. In that time he is the second Director fired, out of what 9? Not many 10 year terms, right? A lot of those were “acting”. Average is less than 5 years,

    Doesn’t justify what Trump did. Timing seems dumb, but maybe not. I would have fired him the first 100 days. I don’t like Cops or AG’s who are publicity hounds. But that’s me.

    1. Just a distraction. I find it amusing that people still call things Trump does as ‘dumb.’ I don’t like the guy, but he’s one hell of a chess player.

      1. No, he’s not. He only looks like a great chess player to people who suck a– at chess.

  14. LTH, DanO, and useful idiots nationwide:
    “The Trump is falling! The Trump is falling!”

    1. ^ Cry for help.

      1. Cry all you want. No one gives a fuck.

  15. allegations of possibly very serious lawbreaking by Trump and his associates

    The Swamp is thick with allegators.

    1. And they were running out of room. Hence the Comey firing.

  16. Mike Hihn was right, these “anti-government” libertarians have cleared sold out. Shame on us fake libertarians.

  17. The president can fire anyone in the executive branch. Yes, even this president.

    1. Oh, OK. Nothing to see here. Move along.

    2. That was insightful. For a Drumpfista

  18. David Bernstein is now a libertarian?
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  20. I find the more apt comparison to be Herbert Hoover since we’re now into the realm of the so-called ‘Deep State’ digging up, and saving, dirt on political opponents through their boundless wiretapping operations. Then they conveniently ‘leak’ that information whenever they want through any number of news organizations that don’t have one shred of integrity.

    Of course, that story is 95% buried in all the noise. Because Russia, or collusion or something. Whatever you do, don’t bring up FISA!
    Sent from Honest Jvzoo Reviews and bonus

  21. The president can fire anyone in the executive branch. Yes, even this president.
    Sent from Honest Jvzoo Reviews and bonus

  22. **DC libertarian reminder to shake your fists into the sky every morning, cursing the summer winds that cool the sweating brows of our tyrannical leadership.**

    Is the Russian hacking about actual hacking or just propaganda distribution? Was it the Russian government or just Russian citizens? (Remember the Podesta leak? That wasn’t Russia, it was spam mail.)
    These are critical to understanding if this is a waste of my time.

  23. “When the President does it, that means that it is not illegal.” -Richard Nixon

  24. Are we seriously still pretending that Sessions was fired for “ethical” reasons?

    Why on earth would a president who faces a “controversy” where the attackers have provided absolutely zero evidence, fire the FBI director? Why would he give the impression of guilt, when “there’s no there, there” as of yet…The world wonders.

    1. The US still won the battle of leyte gulf and cape engano.

  25. “Trump apparently wants the Russia story to go away”
    Why might that be?
    This feels so deja vu to Mr Nixon’s last months in office.
    Denial and stonewalling and showing every indication of guilt over “non-extistant” evidence.
    This man is clumsy, and impulsive course of action simply screams “guilty”
    A day after he fires Mr. Comey he then welcomes Russian diplomats into the Oval office, and excludes the American press, the photos of the meeting coming from TASS?
    The man is hiding something YUUUGE in plain sight.

  26. We are watching a coup d’ etat…..in slow motion

  27. No the firestorm was not set off “with good reason” unless cynical partisan politics is good reason. Cut cut out Eric Boehm next time and get straight to the adults in the post.

  28. “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.”

    Can someone please enlighten me? What new information has been reported or discovered that indicates an “escalation” in the FBI investigation? I haven’t seen or heard of a single new piece of information. Not saying it doesn’t exist, but for all the noise this thing has gotten, there sure seems to be a paucity of any real solid information to back up anything about a collusion.

  29. If I was Trump, not a particularly happy thought, and Team D made me much more miserable with the appointing of a new Director, I’d just say,”Fuck it, I’ll let the interim Director run the show until my term ends.” If he’s a pain in the ass for my administration due to some unsavory party loyalty instead of a paragon of law and order, then I’d fire him too. Let whoever’s next in line have the job. Wash, rinse, and repeat as necessary. That takes the whole confirmation circus out of the media and the partisan’s hands. Sure, they’ll puff and blow for a week or so, but other than that, they can’t do much to force him to fill the slot. If they want to be a pain in the ass, just don’t nominate a replacement.I’m sure the USA can survive a few years with one less titular bureaucrat. What about that?

  30. Legal issues aside, what really pisses me off is that we have the house and senate scrambling everyday looking into the Trump campaign’s involvement with Russia and THEIR role into our election process. How can they govern until this is settled? This president going around, knifing anyone that is investigating the scandal MUST be stopped.

    1. Congress never does anything useful, anyway. We’re probably better off with them investigating Trump.

    2. At what point – after 10 months of investigation finding NOTHING – do you losers give up on the Podesta/Mook concocted Russia conspiracy?

      Why would a politicized “independent investigator” satisfy anyone?

      Who would that investigator be? Name one candidate both sides would say is perfect. Who should appoint that person?

      Shouldn’t there be SOMETHING that indicates possible involvement with Russia first? If not, why don’t we investigate YOUR collusion with Russia to defeat Hillary?

  31. Agree with last guy.
    Select someone like Gorsuch
    Dems will still scream. Note they did with Gorsuch
    But move ahead

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  34. Reason your swamp-friendly NeverTrump positions are making you unreadable.

    There is NOTHING to the Trump/Russia story as confirmed by the FBI and intelligence organizations.

    The book SHATTERED tells the story of Podesta and Mook dreaming it up within 24 hours of Hillary’s loss as they cast about for someone other than the failed, rejected, dishonest, lazy candidate to blame.

    In 10 months of “investigation” – which Comey illegally failed to brief Congress about for 8 months – the FBI has found zip. Either there’s nothing there or the FBI is incompetent – but you still beat that dead horse just like the far left cultists NYT and comPost.

  35. There’s absolutely no need to get philosophical about any of this as there are rafts of un-ideologically practical reasons to can Comey. If anyone insists on going there then keep in mind he’s the one who put Martha Stewart in prison. The fact that 2 FBI operatives were in a car directly behind the shooters in Garland, Texas in May 2015 was ample cause to call Comey onto the carpet. They were taking pictures of the people who became victims seconds later. They did nothing to impede the attack. The further fact that this wasn’t revealed to the public for nearly two years (March 26, 2017) emphasizes the biggest problem at the Hoover Building: They prize the bureau’s image over all other considerations. Here are contained 9 other quite similar events. All of them check out. This comment section won’t accept the link because of length so google Ten Major FBI Scandal on Comey’s Watch it’s at Grabien News.

  36. Exactly what evidence is there that Trump is being investigated by the FBI?

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