Constitutional law experts say that while President Donald Trump’s decision to fire Federal Bureau of Investigation Director James Comey was legal, it appears to be an abuse of power that could constitute an impeachable offense.
Trump’s decision to terminate Comey, the head of the nation’s top law enforcement agency, was announced Tuesday and sent shockwaves throughout the political sphere.
It’s not unconstitutional for Trump to fire his FBI director as he has the authority to fire anyone in the executive branch, explained David D. Cole, the national legal director for the American Civil Liberties Union, in a statement to ThinkProgress.
“But if he did so, as appears to be the case, because he is concerned that Comey’s investigation of ties between his campaign and Russian officials might have implicated him in wrongdoing, it’s tantamount to an obstruction of justice,” wrote Cole, a constitutional law expert and professor who is on leave from the Georgetown University Law Center.
Cole pointed out that although President Richard Nixon also had the constitutional authority to fire Archibald Cox, the special prosecutor investigating the Watergate political scandal, that did not make it the right thing to do.
“In the end, Nixon paid. Trump may find, too, that it’s not so easy to evade justice” wrote Cole.
The timing of the firing raised questions as to whether the president was attempting to interfere with the FBI’s on-going investigation into a possible collusion between Trump’s advisors and the Russian government to influence the 2016 presidential election.
Politico cited Trump advisors who said the president was frustrated that he couldn’t control the “mushrooming narrative” around the Russia probe and had repeatedly “asked aides why the Russia investigation wouldn’t disappear.”
Constitutional law expert Louis Michael Seidman likewise said that in his view there isn’t any doubt that the President acted within the law and has the authority to dismiss Comey. However, Seidman found the firing outrageous.
“…The most likely explanation for it is that Comey was close to finding out information about Trump that would be more damaging than the damage inflicted by the firing itself,” wrote Seidman in an email.
The impeachment clause of the U.S. Constitution is written in a deliberately vague fashion and doesn’t require the president to violate criminal laws in order to be impeached, but has to involve serious misconduct related to his duties as president, said Seidman in an interview with ThinkProgress.
“I don’t think that there’s any question that this could be seen as part of a pattern that constituted high crimes and misdemeanors, which would justify impeachment,” said Seidman, who is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center.
“It’s more of a political judgment. But as a practical matter we are certainly not there yet and I think the first step would be the election of a Democratic congress in 18 months,” said Seidman.
Constitutional law expert and University of California, Irvine School of Law Dean Erwin Chemerinsky described Trump’s decision as within his authority, but potentially problematic.
“It’s troubling that he fired someone who is leading the investigation of him and aides from his campaign and his administration,” said Chemerinsky. “…Could it be seen as an abuse of power that is an impeachable offense? Yes, if a majority of the House [of Representatives] and two thirds of the Senate wanted to see it that way.”
It appears unlikely, however, that Congress would move toward an impeachment, said Chemerinsky, noting that what’s necessary is an independent special prosecutor to take the lead on the Russia inquiry.
“I think the question is did [Trump’s] campaign aides – did the administration – violate the law. That’s where I think there has to be strong public pressure to appoint an independent special prosecutor,” said Chemerinsky.
Laurence H. Tribe, a professor of constitutional law at Harvard Law School went one step further. In an email to ThinkProgress, Tribe said that Trump’s firing of Comey has triggered a constitutional crisis. Only a fully independent investigation can prevent this crisis from “engulfing our democracy,” wrote Tribe.
“What Trump violated by firing the man who was investigating him for what amounted to treason was the spirit of our constitutional system, not its literal text,” wrote Tribe.
Specifically, the principle that “nobody is to be a judge in his own case” pervades the Constitution, explained Tribe.
“Our Constitution’s system of checks and balances at least presupposes that nobody suspected of collaborating with a foreign adversary to gain great power over the people of this country can fire those we’re counting on to investigate that collaboration,” wrote Tribe.
The political damage from Trump’s decision to terminate Comey, who was appointed to a 10-year term as FBI director by President Barack Obama in 2013, could be far reaching, said Seidman.
“Trump will pay a price for this,” said Seidman. “It will make things that he wants to do harder to do like health care and tax reform. It may contribute to his loss of a majority in the House. But the price he’ll pay is political; I don’t think it’s legal.”