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."


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.


el roam said...

Thanks for the post, of course, if criminal reasons, had driven Trump to fire Comey, then surely it is an offense per se , no doubt!! Yet , the author can't rely on motives on one hand , and on the other hand , to claim that :

" Trump's instant declassification of the information he shared with the Russians probably cannot be the basis for a criminal prosecution "

End of quotation :

This is because , it does also depend upon the motives . Speaking of Russian probes of all sorts , how do we know ?? Maybe it was a sort of bribe ?? And then, is there any doubt concerning the criminality?? One could develop endless conspirative theories.

So what seems to be the real issue :

The real issue , is the philosophy of the " prima facie legality " . The principle ( Universal in fact ) is very clear and conclusive :

Whatever the executive branch , through its agents , is doing , must be correct , must be legal , must be legitimate , unless :

Prima facie ( on the face of it ) has clearly clear appearance of illegality ( like arresting a person , for an act , which on the face of it, not an offence at all , like : walking on the sidewalk ) . If a person, gets a demand of payment (from the RSA, or municipal authority) and there , the sum of: 2000 USD stated, it is correct, it is legal, unless, on the face of it, something is wrong , like : not for certain statutory tax demanded , but, for personal expenses of the head of the mayor.

So, in court, the petitioner, has the burden of proof, that what is prima facie legal, is not as such!! Yet , if the prima facie is wrong , burden of proof shall be reversed , then the authority has the duty to defend itself , and prove , that what is prima facie wrong , is actually right .

As such , what Trump has done ( firing Comey ) is right prima facie !! it is legal !! because he does deny any wrongdoing or illicit reason. What is left, is to dig and find evidence of wrongdoing (if there is no other formal illegality here , and to my best knowledge , beyond hearing right before firing ( due process ) there is no ) or:

In face of such public opinion , that much agitated , he ( Trump ) would have to establish , an independent committee for investigating the whole affair , and restore so , public trust in him , and in his motives .


el roam said...

Just correcting it :

IRS , and not : RSA of course .... Thanks

Shag from Brookline said...

Perhaps it might be appropriate if Mike updated his Postscript to reflect the NYTimes story yesterday afternoon on Comey's "alleged" memo of a meeting with Pres. Trump on the investigation of Gen. Flynn that might chip away at prima facie claims.

el roam said...

Just for the readers :

Every comment of mine , to Shag , is deleted automatically almost . One can only imagine , what is written there , and anyway , why deleted .

Just for general clarification ....


Joe said...

"many actions that are lawful if undertaken for an innocent purpose but illegal if undertaken with an illicit purpose"

The reference to Madison is noted and it is part of our national language to reference "the Framers" (usually a specific few, such as the op-ed reference here).

But, they often appeal to basic principle for which references to Madison or language like "auxiliary precautions" are not even necessary. This "illicit purpose" principle included. The average person has the "right" to do various things, including as a child, spouse, friend etc. But, it often turns on WHY they do it.

Shag from Brookline said...

Painter and Eisen have an OpEd at the NYTimes online a short time ago suggesting that the evidence (including the Comey memo) adds up to prima facie obstruction of justice.

Joe said...

"prima facie" is sometimes roughly translated as "at first blush," but blushing often requires shame

el roam said...

One may find great interest here ( and references therein , the blog itself , very recommended ) :


darrowret said...

Technical analyses of obstruction of justice as statutory crime or constitutional offense are well and good, but as pointed out on the fundamental calculus is political. And that calculus depends primarily not even on the views of those in Congress but on their perception of their constituents' views. So long as Trump's considerable base remains impervious to his failings, impeachment will remain a fantasy.

Joe said...

darrowret's final point is on some level true, but we can take things on an objective level too ... in segregationist South, certain crimes were not likely to be prosecuted. But, it was still fair and useful for certain groups to point them out and provide without pressure reasonably possible for authorities to do more.

Net, it is correct to apply pressure, partially to taint the opposition. I think if they actually did not have all this to handle, they would actually be able to have accomplish more. Plus, the loyal opposition is correct on the merits and playing the long game there. The authors of this blog who promote veganism surely know about long.

el roam said...

Very recommended , here :


Shag from Brookline said...

Over at the Take Care Blog, there is an abundance of material on its daily list to absorb. But I was struck by Heal Gabler's "Don't Count on the Precedent of Watergate to Help Depose Trump. We Got Lucky," available at:

Gabler goes through mulifple "ifs" that occurred that eventually forced the resignation of Nixon. Gabler points out: "The real lesson of Watergate is not that it worked. It is that it failed spectacularly."

And John Yooof Bush/Cheney fame has an OpEd in the NYTimes online that tortuously suggest possible routes that Trump might take to remain in office, based upon the route Reagan took after Iran-Contra surfaced.

As the current situation unfolds, what damage is being done to our democracy? We are now in only the second 100 days of the Trump Administration.

And consider the WaPo story yesterday of a House Republican meeting in 2016 shortly before Trump was nominated quoting House Republican Majority Leader Kevin McCarthy on the connection of Russia and Trump that was intended to be kept secret. Do House Republicans have any principles that might challenge Pres. Trump? The Republican Party was well aware of risks with Trump who as a candidate toppled the creme-de-la-creme of Republican candidates with his blustering campaign style. More shoes drop daily from the Trump centipede.

Joe said...

Both Take Care [Leah Litman has a good piece] and Lawfare (a sort of conservative leaning blog) remind that a special counsel is not enough and that there are also political moves in Congress (and outside it) that need to be done here.

Generally, it's important to know that this wasn't done merely out of some good faith, even by the person who appointed him. It was a result of pressure; a few days ago, this was publicly deemed unnecessary.

"what damage is being done to our democracy"

Yes. After being through the Bush43 Administration, that line about the second time being farce comes to mind. Not only though. I'm reading a collection of Obama speeches (co-edited by Joy Reid/E.J. Dionne). Guess it helps a bit.

Shag from Brookline said...

Some weeks back at a thread at either this Blog or Balkinization I made a comment that referenced a favorite radio program of my youth, the Fred Allen Show, that had a feature called "Allen's Alley" where Fred would interview "guests." One such guest was Senator Glaghorn from a deep south state, who would always says outrageous things, and then exclaim "That's a joke, son!"

Sen. Claghorn came to mind with Rep. Kevin McCarthy's "joke" claim following the WaPo story referred to in an earlier comment about Putin paying Trump. Speaker Ryan also said that it was a "joke." Was Ryan playing Edgar Bergen to Kevin's Charlie McCarthy or vice versa? If SNL has a new show this Saturday, this would be a good skit.

Shag from Brookline said...

Some supporters of Trump regarding the Comey memo have suggested that Trump might have been joking. Perhaps that's why Trump ordered two of his minions out of the meeting with Comey so the two of them could laugh together.

Speaking of jokes, consider Putin's offer to provide a transcript of the visit of his Russian officials with Trump. The joke is that the transcript was made from a recording available to Putin via the bug installed by Russian media.

Joe said...

The bit was an inspiration to the Foghorn Leghorn cartoon character.

Michael A Livingston said...

I think Democrats need to decide if they want a bipartisan approach to Trump's limitations, which are obvious, or simply use them to make political hay. Right now the Republican perception is overwhelmingly the second. That being the case, we probably won't cooperate other than superficially, and the situation will continue to get worse. (This is a general reply to your overall tone of your posts, not to this specific one, I've been away for a good bit).