Wednesday, May 17, 2017

James Madison, James Comey, and our Constitutional Blind Spot

by Michael Dorf

In Federalist 51, James Madison wrote:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Practitioners and scholars of constitutional law understandably focus their attention on those "auxiliary precautions." When Madison wrote the foregoing, the auxiliary precautions he had in mind comprised the constitutional system of checks and balances, in which "[a]mbition [is] made to counter ambition." Almost immediately after the ratification of the original Constitution (and in fulfillment of a promise by its supporters to its skeptics), the Bill of Rights was added as another auxiliary precaution against leadership by those who prove not to be "angels." And so we constitutional specialists spend our energy asking what powers the Constitution assigns to each branch and level of government, and what rights it grants to individuals.

The resulting questions are important in all times, especially now, but we must beware the tendency to pass too quickly over what Madison called "the primary control on the government": "the people." The debate among constitutional lawyers over the firing of James Comey illustrates this tendency. Those who argue that Trump had the formal power to fire Comey misunderstand the nature of the contrary argument that the firing was nonetheless a despicable or even impeachable act. That contrary argument is best understood as a Madisonian appeal to the people.

Various commentators--mostly on the right but also including some who probably consider themselves centrists, like Alan Dershowitz--have opined that Trump's firing of Comey cannot be the basis for a prosecution for obstruction of justice, impeachment, or other action against Trump because the FBI Director serves at the pleasure of the president. Even if they do not invoke the "unitary executive" and the line of Supreme Court cases that limits the power of Congress to restrict the president's authority to terminate certain executive branch officers, these commentators note that the FBI Director does not enjoy good-cause protection. The ten-year term of the Director applies only in the absence of presidential action.

So far so good, but it hardly follows that firing the FBI Director cannot be unlawful. Let's take a simple example. Suppose that X approaches the president and offers him a bribe to fire the FBI Director and nominate Y in the fired Director's stead. The firing of the Director would be part of the proof that the president had unlawfully accepted a bribe. Or--perhaps more realistically--suppose that Trump told various people in the Justice Department and elsewhere in government that anyone who pursued the Russia probe vigorously would be punished and then fired Comey for his vigorous pursuit of the Russia probe. The firing, in this speculative version of what might have happened, would be problematic not just because it removes Comey but also because it acts as a warning to other government officials that following the law and the facts could cost them their jobs.

Much more broadly, there are a great many actions that are lawful if undertaken for an innocent purpose but illegal if undertaken with an illicit purpose. There can be difficult questions of proof. And--as I noted last week--reinstatement may not be available as a remedy. But the strong form of the argument, which says that acts that fall within the formal powers of the president cannot be the basis for criminal charges or impeachment, is just flat-out wrong.

Moreover, the focus on the president's formal powers under the Constitution and relevant statutes jumps immediately to Madison's "auxiliary precautions" without so much as a glance at the real--and wholly appropriate--target of the argument that Trump acted wrongly in firing Comey for a bad reason: the people.

Laurence Tribe's recent op-ed in the Washington Post is best understood in the Federalist 51 frame. Tribe invokes the Comey firing along with Trump's broader abuse of power to paint his obstruction of justice as substantially worse than the similar charge that the House of Representatives was prepared to level against President Nixon. Tellingly--and fittingly--Tribe does not parse the federal obstruction of justice statute, even though a plausible case can be made that the firing of Comey to derail the investigation would amount to a violation of the statute.

If Trump ever faces a jury of his peers, there will be time enough to resolve whether the firing of Comey and the prior efforts to extract go-easy promises from Comey, in combination with other evidence of Trump's acts and motives, establish guilt. For now, Tribe's piece aims to energize "the people" in order to motivate Congress to protect the nation from a manifestly dangerous leader. In so doing, it aims to activate our "primary control on the government."

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Postscript: I conceived and drafted the foregoing on Monday--before it was reported that in his oval office meeting with the Russian ambassador and foreign minister, Trump revealed highly sensitive information about an Islamic State plot that could jeopardize the sources and methods of a foreign government's intelligence service (reportedly Israel), which, in turn, could jeopardize intelligence sharing by that government and potentially other friendly governments. As widely noted (e.g., in the point labeled "first" here), and just as with the firing of the FBI Director, there is no doubt that Trump had the legal authority to do what he did as a formal matter. Moreover, unlike the firing of Comey--which could be criminal depending on Trump's motive--Trump's instant declassification of the information he shared with the Russians probably cannot be the basis for a criminal prosecution.

But once again, despite reports to the contrary in the Trump-friendly media, the real issue is not formal authority. The real issue is whether Trump has the will or the capacity to faithfully discharge the duties of his office. The factual evidence overwhelmingly indicates that he does not. Whether any action results from that evidence turns on whether our Madisonian "dependence on the people" proves misplaced.