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The Comey Firing Isn’t A Constitutional Crisis – Yet

The crisis will come if Trump taps a political hack to replace him.

May 10, 2017

The firing of FBI Director James Comey does not represent a constitutional crisis — at least not yet. Every president, even Donald Trump, has the right to fire an FBI Director for good reason or no reason at all. The fact that the justifications for Comey’s dismissal offered by Attorney General Jeff Sessions and his deputy, Rod Rosenstein, alternate between laughable and lame is a political question, not a constitutional one, for Washington to grapple with in the coming hours and days.

No, the constitutional crisis will come, if it is to come, depending on who President Trump chooses to replace Comey. That is when we all will know if we continue to have an independent federal law enforcement apparatus. If the President selects an independent professional with law enforcement experience and bipartisan chops — like former federal prosecutor Patrick Fitzgerald or D.C. Circuit Court of Appeals Judge Merrick Garland, for example—then we’ll know we have an FBI that continues to be led by grownups, one that can honorably continue to investigate the administration’s ties to Russia (among other things).

But if President Trump chooses a political hack or crony to replace Comey — like New Jersey Gov. Chris Christie or former New York Mayor Rudy Guiliani, for example — then we’ll know the crisis has arrived. Then we will know we have an FBI that is merely a political tool of a White House and an administration bent on smothering an investigation that poses an existential threat to its existence. The person who succeeds Comey must engender confidence not just among Trump’s allies but among his growing list of political opponents. And the pick must be more competent than most of the other hapless hires the president has made to run his administration.

There is little reason to believe that this president will make the right choice and nominate a new FBI Director who Democrats as well as Republicans will embrace (or at least tolerate). There is every reason to believe his selection instead will be as uninspiring and dubious as were his picks to head the Environmental Protection Agency, the Department of Education, and the Department of Energy, and so on. And that means the Republican-controlled Senate will be asked, yet again, to stand up to a president of its own party.

I don’t know about you but I was not moved by the tepid expressions of doubt and worry offered Tuesday night by some Republican lawmakers when they reacted to the news of Comey’s firing. It’s easy to write a few words on Twitter. It’s harder to vote against a president of your own party. If these Senate Republicans are truly worried, and serious about the bedrock principles of checks-and-balances and separation-of-powers, they will reject any and every FBI nominee whose reputation and experience does not guarantee independence from the White House.

We keep saying that this incident or that episode is a “gut-check’ moment for Congress to curb President Trump’s abuses of power. And for 110 days now our federal lawmakers, one gutless weasel after another, keep letting us down. What is at stake now is nothing less than the awesome power of the FBI — its surveillance power, its investigative power, its power to reach into and ruin the lives of each and every one of us — being placed into the hands of a person beholden to an unhinged executive. President Trump may precipitate a crisis in his choice to replace Comey. It will be up to the Senate to defuse or deflect that crisis. Do you have confidence that this assortment of Republicans senators is able and willing to live up to the task? I sure don’t.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Photo: Flickr/Brookings Institution)