Professor Andrew Kent wrote a post in Lawfare blog about presidential interference with FBI independence.
Although Christopher Wray seems like a reasonable choice to lead the FBI, appointing a decent new director will do little to cure the terrible damage done by President Trump’s dismissal of James Comey in the middle of his ten-year term because Trump disliked the FBI’s pursuit of the Russia investigations.
Like the controversy over the firing of U.S. Attorneys for apparently political reasons under the George W. Bush administration, Trump’s termination of Comey exposes a significant weakness in how the U.S. legal and political system has attempted to attain independent and apolitical law enforcement. Only norms, politics, and Attorney General guidelines (which the president can choose to ignore) require independence of federal law enforcement from the political or personal whims of the White House, while statutes and constitutional understandings make the FBI director (and U.S. attorneys and attorneys general) an at-will employee of the president.
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Trump, by contrast, has directly attacked the checks and balances that maintained law enforcement independence.* He seems to care not a whit about these norms and traditions of independence, demanding Comey’s loyalty to himself personally and firing Comey when that was not forthcoming. Congressional Republicans have abetted Trump’s breach, imposing no real consequences for his actions. And given Trump’s willingness to dismiss Comey when it seemed that the FBI investigations would put at stake legal jeopardy for Michael Flynn, political distraction for his administration, and possibly a partial undermining of the legitimacy of his electoral victory, it seems unwise to write off the possibility of future destructive action now that Trump’s son and son-in-law seem to have real legal exposure.
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The FBI director has a ten-year term as a matter of statute, but Congress has put no restrictions on the president’s power to remove the director. It may seem silly to speculate about statutory tenure protection for the FBI director, either because such a restriction on presidential removal power would be so contrary to settled constitutional law, or because it’s nearly impossible to imagine the politics that would lead the current Congress to pass such a statute by a veto-proof margin.
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President Trump has now broken the uneasy compromise that has existed since 1976. Independent and apolitical law enforcement is an invaluable aspect of liberty under law, and we will sorely miss it if it’s gone. But as Benjamin Wittes noted, the Senate Judiciary Committee did not approach the Wray confirmation hearing “with the gravity it deserved,” given the extraordinary circumstances that led to the vacancy at the top of the FBI. The Senate appears willing to tolerate precisely the kind of abusive presidential interference with FBI independence that it promised not to tolerate in the aftermath of Watergate.
With full appreciation of the near-term political futility of this suggestion, I will still suggest that it makes sense for Congress to consider giving the FBI director for-cause protection from presidential removal, even though that would pose grave separation-of-powers questions under the Constitution.
