Trump’s Legal Authority to Fire Comey
May 16, 2017
This column by ACRU General Counsel Ken Klukowski was published May 11, 2017 by Breitbart.
President Donald Trump’s firing of FBI Director James Comey is entirely legal, both under federal law and under the U.S. Constitution.
Such a high-profile firing is of course always a hot political issue regardless of who occupies the White House, but is not any sort of legal issue, despite the hyperventilating language the president’s critics are using to cast his decision in a negative light.
Establishment media outlets and the president’s political opponents are using words like “coup,” “cover-up,” and “constitutional crisis” to describe Trump’s decision on Tuesday to fire Comey. Some are even using legal terms like “obstruction of justice” (which is a felony), and invoking the “I-word” (impeachment).
These pundits and politicians should try switching to decaf. Breathlessly twisting this political situation into a legal one is utterly baseless.
Under a federal law enacted in 1976 and found at 28 U.S.C. § 532 note, the director of the Federal Bureau of Investigation serves up to a 10-year term, during which time he can be removed by the president for any reason. Some pundits erroneously claim this means he is guaranteed to serve a decade. He is not.
Instead, this law guarantees that there would never be another J. Edgar Hoover, who controlled the FBI for 38 years, spanning six presidencies, and reportedly developed dossiers containing embarrassing details on countless political and public figures. Congress decided that no one person should have such vast investigative power over American citizens for so long, and codified into statute, “A Director may not serve more than one ten-year term.”
The number 10 is a ceiling, not a floor. It never says they are guaranteed to get the full 10 years. To the contrary, although FBI directors expect a full-length tenure, the president may remove them at will for any reason, or no reason at all.
While Director Comey made many friends during his long career, leaders from across the political spectrum in both parties heavily criticized him over the past year, as explained by Deputy Attorney General Rod Rosenstein in Rosenstein’s memo to Attorney General Jeff Sessions recommending that Comey be fired.
Not only does federal statute authorize the president to do this, but the Constitution demands that every president must have such discretion.
The Constitution commands that the president “shall take care that the laws be faithfully executed.” Because he is only one man, most of every president’s enforcing of the laws of the nation is done through the people who serve under him in his administration. He makes thousands of appointments; the highest-ranking officers must first be approved by the Senate, and the lower-ranking ones are appointed directly.
For the first 145 years of the nation’s history after the Constitution was adopted, all branches of government agreed that the president’s power to appoint a subordinate officer includes the power to remove any current subordinate whose performance did not satisfy the president, so that the chief executive could appoint a replacement who would serve better — service that, again, the president must answer for to the millions of Americans who elected him to office.
The Supreme Court upheld this principle in its 1926 decision, Myers v. United States, in which the Court held, “The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate.”
The Court in Myers went on to further hold that “this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress.” In other words, Congress cannot pass a law granting any executive officer a right to stay in office once the president decides to remove him.
But in 1935, as part of its massive move to the judicial left, the Supreme Court in Humphrey’s Executor v. United States overruled Myers, holding that Congress could pass laws restricting the president’s ability to remove a subordinate.
Even then, Humphrey’s Executor applies only to certain officers who have some powers that resemble legislators or judges, such as commissioners on the Federal Communications Commission or members of the National Labor Relations Board. It does not apply to purely executive officers like the FBI director — who continue to serve at the pleasure of the president.
The Supreme Court’s most recent major case under the Constitution’s Appointments Clause was Free Enterprise Fund v. Public Company Accounting Oversight Board, decided in 2010. In that case, the Court held that it violated the Constitution to allow the members of that board to be removed only for good cause by the Securities and Exchange Commission, comprised of members who likewise can be removed by the president only for good cause. The Court concluded that this double layer of insulation from the elected head of the Executive Branch made the board members too unaccountable to the American people in the nation’s democratic system to be allowed under the Appointments Clause.
As Chief Justice John Roberts explained in Free Enterprise Fund, Article II of the Constitution:
…confers on the President the general administrative control of those executing the laws. It is his responsibility to take care that the laws be faithfully executed. The buck stops with the President. The President therefore must have some power of removing those for whom he cannot continue to be responsible.
People on the left can argue all they want about the politics of firing Comey or whether it was warranted from a policy standpoint. But they cannot argue about whether it was legal, or precipitated some sort of constitutional crisis. The FBI is a manifestation of the ultimate coercive power of the state: the power not only to investigate and seize records and information, but also to arrest, detain, incarcerate, and even use legal force. As envisioned by the Framers of the Constitution, democracy demands that the commanding officer of such an incredibly powerful agency must always answer to the person the American people elected as the chief executive officer of the nation.
The FBI director serves at the pleasure of the president. The president therefore has full authority under the Constitution and federal law to fire the head of the FBI, just as he can thousands of other political appointees, and is accountable to the American people for how he chooses to wield that power.