President Trump Had The Legal Power To Oust James Comey
Democrats would be well advised to look in the mirror before lambasting the removal of Jim Comey.
James Comey
If you’ve watched the news in the last 36 hours, you probably walked away with the message that President Donald Trump has done something really, really bad.
Something outrageous.
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Something unforgivable.
Something perhaps even unconstitutional?
“I never thought Donald Trump could shock me, but now I’m shocked,” one commentator lamented.
What did Trump do? He did something well within his legal authority and highly advisable if you consider the past statements of Democrats: he fired FBI Director Jim Comey.
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This was a decision that Trump had every right to make. Just five days before Trump took this action, Newsweek published a rather prescient article titled “Can President Donald Trump Fire FBI Director James Comey?”
The overwhelming conclusion: yes.
A 2014 Congressional Research Service report states quite clearly: “There are no statutory conditions on the president’s authority to remove the FBI director.” In line with this analysis, Scott Bomboy from the National Constitution Center told Newsweek that after an FBI director is confirmed, “it’s really up to the president as the head of the executive branch to determine their employment status.”
Robert Chesney at Lawfare echoes this, in an analysis after Comey’s firing: “Now, what about the power to remove the Director? This part is actually quite straightforward as a legal matter, given that Congress at no point has attempted to constrain the president’s removal power.”
President Trump indisputably possessed the power to oust Comey. On this point, every reasonable legal commentator or scholar agrees.
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Had the Founders deemed firing an executive appointee to be such an egregious action, they would have curtailed the president’s removal power in our Constitution. They did not. Had Congress deemed firing an FBI Director antithetical to democracy, they would have sought to limit this presidential action by statute. They did not.
But the apoplectic outrage of the left persists.
In addition to being legally permissible, the President’s actions were outright advisable if you consider the past statements of Democrats:
- Senate Minority Leader Chuck Schumer: “I do not have confidence in him [Jim Comey] any longer.”
- House Minority Leader Nancy Pelosi: “Maybe he’s [Jim Comey’s] not in the right job.”
- Democratic Congressman Tim Walz: “I no longer have faith in him. Some of the things that were revealed in this classified briefing – my confidence has been shook.”
These are but a few of the many Democratic Comey criticisms. And recall that failed Democratic presidential nominee Hillary Clinton and her campaign have repeatedly blamed their electoral losses on Comey.
Deputy Attorney General Rod Rosenstein — a career prosecutor praised by both parties and confirmed 94-6 by a bipartisan Senate — used the Democrats’ very rationale in the memo that prompted Jim Comey’s firing: “[T]he Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.”
Rosentein, of course, was referring to the decision to hold an unflattering press conference in announcing the decision not to prosecute Hillary Clinton — a choice that rested not with the FBI, but the Justice Department.
The fact is, President Trump had the power to dismiss Comey, and many of the people decrying his action ought to be applauding it if history is relevant. If Trump’s actions are as perilous for democracy as commentators hysterically suggest, lobby Congress to try and limit this power of the executive branch (subject, of course, to constitutional constraints).
In the meantime, Trump was well within his legal purview. Those denouncing Trump today ought to have denounced Obama yesterday, whose actions actually did run afoul of the Constitution when he unilaterally overturned parts of the Immigration and Nationality Act and the Brady Bill.
Democrats would be well advised to look in the mirror before lambasting the removal of Jim Comey. Obama’s actions — not Trump’s — were those of an authoritarian.
Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown University’s School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.
