The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Politico has just posted an instant symposium of legal commentators, offering their reactions to today's Senate testimony by former FBI Director James Comey. The contributors include Laurence Tribe, David Cole, Josh Blackman, Volokh Conspiracy co-blogger Eugene Kontorovich, and myself, among others.
In my contribution, I suggested that we did not learn much that was new today, but that Trump's violations of legal and political norms are deeply troubling regardless of whether he technically violated the law or not. Here is an excerpt:
Thursday's testimony was dramatic theater, but it is not clear that we learned much that was new. Comey's statements indicate that Trump pressured him to drop the investigation into disgraced former Flynn's ties to Russia, and that Trump has a brazen disregard for political and legal norms. We already knew the former from media reports and Comey's written testimony, and the latter has long been evident to anyone paying attention to the president's words and deeds….
Experts differ over the issue of whether the actions described by Comey qualify as obstruction of justice. But even if Trump's actions were technically legal, it is important to remember that our constitutional system depends on unwritten norms as well as formal legal rules. The norm breached by Trump-that FBI investigations must be independent and nonpartisan-serves the vital function of making it harder for presidents to use the Bureau to persecute their enemies and shield wrongdoing by their allies.
The deterioration of valuable political norms did not begin with Trump, of course, and both parties deserve blame for this dangerous trend, which is in part a product of growing partisan bias that incentivizes both sides to overlook the misdeeds of their respective leaders. But Trump is making the situation even worse than before.
Many of the other participants in the Politico symposium believe that today's testimony has greater significance than to me appears to be the case, and may have some lasting impact. I readily admit that they could turn out to be right. The situation is, to put it mildly, unusual in many ways. It is hard to make any definitive predictions about what will happen.