Congress, the executive, and the FBI: what makes a "constitutional crisis"?

A few longer, meandering thoughts from a few Twitter threads overnight....

President Donald Trump fired Federal Bureau of Investigation ("FBI") Director James Comey last night. As I tweeted last October, the Office of Legal Counsel has long held the view that the FBI director may be removed "at the will of the president." The removal is certainly constitutional. There is a design of independence in the FBI director--he is given a 10-year position, which is designed to insulate him from political pressure, such as the pressure of renewal by the same president who hired him. But that does not mean that he is legally independent.

Much of the commentary that erupted has elided some of these legal and political distinctions. But it's worth noting that the firing itself has elided these distinctions. And it's worth emphasizing why our constitutional order is functioning quite well--hardly a "constitutional crisis." That said, the next political steps will be significant in the extent to which they protect the institutions, and the checks, the Constitution has created.

President Trump could have fired Mr. Comey for no reason whatsoever. But he didn't. He provided reasons linked to Mr. Comey's handling of Hillary Clinton's email server. As commentators have already noted, elements of this justification seem oddly post hoc or a solution in search of a justification. Some have speculated that the true reason was on account of the investigation into the possible relationship between members of the Trump campaign and Russia. (Indeed, President Trump mentions in the cover letter that he is gratified that Mr. Comey has informed him "on three separate occasions" that he is not under investigation.)

Here we see an important legal/political distinction. Legally, President Trump needed no such justification; politically, he felt compelled to come up with a reason. (Apparently, that reason has not been sufficiently persuasive to many.) Because of a political tradition of rarely firing the director of the FBI (President Bill Clinton is the only other to do so, after a lengthy investigation and fact-finding)

Some have opined about the problems of this regime--how can the President be able to fire at will the very person investigating him? Consider Justice Antonin Scalia's words in dissent in Morrison v. Olson (1988) (some citations excluded):

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.  The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed. Reg. 30738 (1973).

As Professor Adrian Vermeule has carefully pointed out, the remedies here are political. And they are considerably more powerful, I think, than many otherwise anticipate.

First, the Senate has the power to consent to appointment of the next FBI director.

Second, the House can initiate impeachment proceedings.

Third, Congress can authorize the creation of a special prosecutor to investigate (who might still be removable at the will of the Attorney General).

Fourth, Congress can create an independent commission to investigate the matter.

The likelihood is perhaps another matter. It is worth noting that these political solutions work under limited circumstances: if party that controls the Senate (or Congress) is not the President's party, or if there is bipartisan support for these political solutions, or if one waits for an intervening election, or if Congress can override the President's veto on new legislation. There is some suggestion that this may be a bipartisan moment, at least among some influential moderate and independent Senators. Time will tell. But these are the costs of a political system like we have, as Justice Scalia pointed out in Morrison.

Two notable solutions are likely unavailable.

The first is the independent counsel--the very thing that was approved in Morrison v. Olson. Much time has passed since 1988, and many view Justice Scalia's dissent as unusually prophetic. It may be that the Supreme Court would overrule Morrison--indeed, Justice Elena Kagan offered remarkable praise for Justice Scalia's dissent, and it may well be the case that there are five votes to overturn Morrison. Some in Congress have already mentioned such a possibility, but I believe that would be dead on arrival in Congress, much less in the courts.

The second is a judicial remedy. The battle here will play out between Congress and the executive--and into the political realm in 2018, given our frequency of elections in the United States. The federal courts--absent, perhaps, weighing in on the constitutionality of some such possible new legislation in the future--will remain on the sidelines.

Finally, I've seen people refer to this as a "constitutional crisis," but, as Professor Orin Kerr notes, this phrase has become something too broad. This isn't the Civil War; this is a significant political controversy, to be sure, that will be carried out in Congress, in the executive, and in the election cycle. But it's something our Constitution is actually fairly equipped to handle. What the results will be, and whether one finds those results acceptable, is, I think, quite a different matter.