The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On election night back in November, I wrote a post called "The Trump break point" about checks and balances in the Trump era. I asked the following question: "When Congress considers exercising checks and balances on the power of President Trump, what is the break point? At what point does Congress decide that Trump has gone too far and should be countered?"
I offered an example of how Congress might respond if Trump fired then-FBI-Director James Comey:
FBI Director James Comey is serving a 10-year term that is set to expire in 2023. Comey has been a lightning rod of controversy this year. Justly so. But whatever you think of Comey's judgment, he is very independent. Comey is the guy who famously stood up to President George W. Bush over illegal surveillance, ready to offer his resignation from the Justice Department, in 2004. If you're looking for a check on lawlessness from President Trump, Comey is actually a good place to start. It may seem counterintuitive now, when a lot of people fear that Comey helped Trump win the election. But I think it's a good bet going forward.
Say President Trump wants the FBI to do something that Comey refuses to do because it's likely illegal. The traditional view would be that it's tough for the president to fire an FBI director for that reason (or to have the FBI director resign for that reason) because the political blowback would be severe. Sure, the president has the legal authority to do it. Just ask William Sessions. But firing the FBI director for refusing to break the law would traditionally be thought to hit a break point. It would raise a lot of fears about the FBI's independence, and it would trigger a strong political response from Congress. In all likelihood, it wouldn't happen.
But will the next Congress apply those old norms to President Trump? Imagine Comey refuses an illegal Trump order. Trump promptly fires Comey, and he then nominates a Trump loyalist to be the new FBI director. How would the Republican Congress respond? Would senators say, "well, Trump is Trump," shrug it off and confirm Trump's pick? Or would they rebel against Trump not only for the illegal order but also for removing an independent FBI director who merely wanted to follow the law?
Our current situation isn't exactly like my hypothetical. We don't have reason to think Trump ordered Comey to do anything illegal before firing him. Trump's new nominee for FBI director, Christopher A. Wray, is not to my knowledge a Trump loyalist.
But with Comey scheduled to testify Thursday, it seems like a good time to ask my question again. Specifically, I'll ask readers to consider, where is your break point? This is too easy if you already oppose Trump. You may have passed that stage a long time ago. So instead I'll pose the question to readers who support the president, either enthusiastically or cautiously: What are the kinds of things that, if you became convinced that they happened, would make you change your mind about supporting Trump?
To be clear, I'm not saying that whatever might cross your own line actually happened. We all hope it didn't. But I think it's useful to consider now where our lines are. Here's the thought experiment I'd ask you to ponder. Let's think beyond this week's Comey testimony. Imagine that some day we find out, with a high degree of confidence, exactly what happened and what Trump knew.
Where's your line?
For example, is it enough if Trump tried to use his influence to shut down the Russia investigation? Does it depend on what Trump knew or didn't know about what the investigators might find? For example, would it cross your line if Trump didn't know if there was collusion between his staff and hackers but feared there was? Would it cross your line if Trump believed that there was collusion between his staff and hackers working for the Russian government? How about if Trump affirmatively approved a deal with the hackers, in which his staff directed them to helpful targets and the hackers would follow the campaign's advice and release that information to help the Trump campaign?
Again, I'm not saying any of these things happened. We all hope—or at least I do—that they didn't. And although the special counsel's investigation may help explain what happened, we may never know with certainty what Trump knew. But I think it's worth considering now where your line is, so that we can tell later if that line has been crossed.