The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Update below, 5-11-17]
There's much to be said for the parallels that many people have noted between the actions taken Tuesday by President "I-Am-Not-Under-Investigation" Trump and those taken by President "I-Am-Not-A-Crook" Nixon in the October 1973 "Saturday Night Massacre."
Both, of course, involved relieving a subordinate who was in charge of an investigation into the possible involvement of the president (and his aides) in illegal activity. [Nixon's case was complicated by the fact that only the attorney general had the power, under the governing statute at the time, to fire the independent counsel (Archibald Cox), which led to the dismissal of both Attorney General Elliot Richardson and Deputy Attorney General Bill Ruckelshaus, both of whom refused to carry out Nixon's order.]
In both cases, the president had a pretext for the firing. In Nixon's case, it was the preservation of executive privilege. Cox had just issued a subpoena for the White House tapes, and Nixon didn't want to comply—purely on principle, of course; I mean, it's not like he was hiding anything, or anything nefarious like that.
Trump's pretext is equally transparent: FBI Director James B. Comey mishandled the Clinton investigation and lost the trust and confidence of the American people.
I know, from the comments to my earlier posting, that some people buy this. I don't. I can't get over the fact that Comey's handling of the Clinton investigation didn't seem to bother Trump during the campaign. Or during the post-election transition period. Or up until Tuesday.** The memo by Deputy Attorney General Rod J. Rosenstein, which is widely being cited by the White House and its apologists as the justification for Comey's firing, has nothing in it that we didn't know six months ago.***
** Benjamin Wittes and Susan Hennessey over at Lawfare have collected Trump's comments about Comey's performance prior to Tuesday afternoon. They write:
Suffice it for now to remind readers that Trump was positively jubilant about Comey's October letter at the time it was issued. "The FBI would never have reopened this case, at this time, unless it were a most egregious criminal offense," he declared at a campaign event in Iowa. "As you know, I've had plenty of words about the FBI lately, but I give them great credit for having the courage to right this horrible wrong. Justice will prevail."
We also do not recall Trump saying then that the letter represented some great breach of Justice Department norms and traditions or that the FBI director should be removed and replaced with someone "who understands the gravity of the mistakes and pledges never to repeat them." Back in July, in fact, Trump's only complaint about Comey's behavior was that he had let Clinton off the hook. In a statement since removed from his campaign website, Trump blamed a "rigged system" for the FBI's decision not to prosecute. He also tweeted: "FBI director said Crooked Hillary compromised our national security. No charges. Wow! #RiggedSystem"
For months, this was Trump's recurring mantra. In fact, just hours before the release of Comey's letter, Trump appeared on Fox News and claimed that the fact Clinton was "allowed to run for president" at all indicated that "[t]he FBI rolled over and the Department of Justice rolled over." Shortly after Comey's letter was released, Trump praised the decision, saying that Comey had "brought back his reputation" by resisting pressure against prosecuting Clinton. He even went so far as to declare that, "What [Comey] did was the right thing."
Attorney General Jeff Sessions apparently agreed-at least when there wasn't a Russia investigation Comey was supervising that he had the power to stop. On October 30, following the release of the letter, he argued that Comey had an "absolute duty" to disclose new evidence in the Clinton email investigation prior to the election.
I'm on record, here on the VC, as saying that I expected Obama to fire Comey, with good cause, the day after the election; and if Trump had fired him on the day after the inauguration, I would have been pleased (and surprised). But the question now before us isn't "Has Comey done anything to justify his firing?" The question now is: "Why is Trump firing him now?" And why the rush—without telling anyone on Capitol Hill in advance, without telling his own press secretary that it was coming, without calling Comey to his office and telling him to his face? Having waited this long, where's the rush?
*** I have the feeling that Rosenstein got played here by people more sophisticated politically than he.
Sessions: "So what do you think about the way Comey's handled his job?"
Rosenstein: "Terrible. He mishandled the Clinton investigation—he should never have had that first press conference, back in July, and he should not have written that letter in late October. Really bad."
Sessions: "Yes … Write that up for me in a short memo, would you?"
Rosenstein: "Yes, sir."
[UPDATE 5-11-17 Turns out I may have been closer than I thought: The Washington Post reported today that
"Rosenstein's participation in the Comey ouster took shape this week after he and Sessions attended a previously scheduled lunch with Trump on Monday. The president wanted to get rid of Comey. After the Justice Department officials laid out their view, Trump—[Aha! The Presizdent, not the AG—DP] asked them to put their thoughts in writing, and Rosenstein on Tuesday wrote his memo, according to White House officials.
Rosenstein threatened to resign after the narrative emerging from the White House on Tuesday evening cast him as a prime mover of the decision to fire Comey and that the president acted only on his recommendation, according to a person close to the White House, who spoke on the condition of anonymity because of the sensitivity of the matter. Justice Department officials declined to comment on the claim."
Maybe it has nothing to do with the significant increase in resources that Comey had, a few days ago, asked for in connection with the Russia investigation. Or the subpoenas that the federal grand jury has now issued to Michael Flynn and his associates in connection with that investigation. No, none of that—it's because Comey treated Clinton unfairly in the handling of the investigation into her email server.
It's laughable, really. Coming from a guy who led "Lock Her Up" chants, it's downright ridiculous.
The Saturday Night Massacre truly marked the beginning of the end for Nixon. Many people liked Nixon, many people thought he was a good president, and an overwhelming number of them thought he was a much better choice than his 1972 opponent, George McGovern. But they weren't blind. People saw through his BS:
"Less than a week after the Saturday Night Massacre, an Oliver Quayle poll for NBC News showed that, for the first time, a plurality of U.S. citizens supported impeaching Nixon, with 44% in favor, 43% opposed, and 13% undecided, with a sampling error of 2 to 3 per cent. In the days that followed, numerous resolutions of impeachment against the president were introduced in Congress."
There were still some holdouts, to be sure—but most people over the age of 14 saw very clearly that there must be something on those tapes that Nixon didn't want anyone to hear.
Though we won't know for some time whether the Tuesday Afternoon Massacre is a similar tipping point for the Trump presidency, I fervently hope that will prove to be the case. I fear that it will be otherwise; there seem to be large numbers of people who, for whatever reason, still actually believe what he tells them. This is a man, remember, who famously said that he could walk down Fifth Avenue and shoot somebody and not lose any voters. That is a terrible thing to say—maybe not for a Mafia chieftain or drug lord, but for a presidential candidate? There may be, alas, some truth to it.