Comey Firing Could Wake a Constitutional Wolf

Two senators are seeking to force the Trump Administration’s hand on appointing an independent prosecutor to investigate possible links between President Donald Trump’s campaign and Russia’s alleged efforts to influence the 2016 election.

Former FBI Director James B. Comey had been leading the criminal investigation into those links, despite longstanding calls from Democrats to appoint an independent counsel.

Comey’s abrupt firing May 9 renewed those calls and led Sen. Dianne Feinstein (D-Calif.) to announce during a May 10 Senate Judiciary Committee hearing that she and Sen. Richard Blumenthal (D-Conn.) intended to introduce “legislation to ensure that a truly independent prosecutor can be appointed.”

It’s not clear what that legislation will look like. Feinstein’s office referred Bloomberg BNA to Blumenthal’s office, which didn’t return a request for comment.

But a 1978 law passed in the wake of the Watergate scandal could provide the framework. That law, the Ethics in Government Act, established mechanisms for appointing an independent counsel and determining the scope of his or her investigation.

The act, which has since expired, also has the added benefit of being blessed in 1988 by the Supreme Court, in Morrison v. Olson.

But constitutional law professor Josh Blackman, of South Texas College of Law Houston said it’s unlikely that the current Supreme Court would uphold a similar statute today.

Justice Antonin Scalia’s lone dissent in Morrison argued that the independent counsel provisions violated separation of powers principles. Separation of powers concerns frequently “come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis,” Scalia said.

“But this wolf comes as a wolf,” he memorably concluded.

Scalia’s dissent has “stood the test of time,” Blackman told Bloomberg BNA in an email. 

But an independent counsel statute isn’t only unconstitutional, Akhil Reed Amar, a constitutional scholar at Yale College and Yale Law School, told Bloomberg BNA. Such a statute won’t work and isn’t necessary, Amar said.

Trump shocked Washington insiders and outsiders alike when he dismissed the controversial FBI head.

Feinstein said she was “surprised and taken aback” when Trump told her of his plans to sack Comey.

But the timing of the firing and the possible motivation behind it were more troubling to many than the way the dismissal was carried out.

Feinstein noted that the the Department of Justice had recently taken steps to advance its ongoing investigation of Russian interference in the election, including issuing grand jury subpoenas.

She suggested Comey’s termination may have been motivated by efforts to thwart or slow down that investigation.

Even some GOP members of the Senate Judiciary Committee, which oversees the FBI, expressed concerns.

The “timing of this firing is very troubling,” Sen. Ben Sasse (R-Neb.) said in a May 9 statement. Sasse added he’s already reached out to the DOJ, of which the FBI is a part, for “clarity” on the rationale for this action.

“I’ve spent the last several hours trying to find an acceptable rationale for the timing of Comey’s firing. I just can’t do it,” Sen. Jeff Flake (R-Ariz.) tweeted May 9.

Democrats said enough is enough; now is the time to appoint an independent counsel.

 If there’s ever been a “time when circumstances warranted a special prosecutor, it is right now,” Senate Minority Leader Chuck Schumer (D-N.Y.) said on the Senate floor May 10.

But top Republicans, like Senate Majority Leader Mitch McConnell (R-Ky.), haven’t budged.

“Two investigations are currently ongoing: the Senate Intelligence Committee’s review of Russian active measures and intelligence activities, and the FBI investigation,” McConnell said on the Senate floor May 10.

Calls for a new investigation “could only serve to impede” that work, he said.

That’s likely why Feinstein and Blumenthal are seeking to force the executive branch’s hand by introducing legislation in the Republican-controlled Senate requiring the appointment of an independent prosecutor.

As they craft that legislation, they may be looking to the Ethics in Government Act of nearly 40 years ago.

That law allowed “for the appointment of an ‘independent counsel’ to investigate and, if appropriate, prosecute certain high-ranking government officials for violations of federal criminal laws,” the Supreme Court explained in Morrison v. Olson.

Under the act, if the attorney general determines that there are reasonable grounds for an investigation, he or she applied to a specially created court for the appointment of independent counsel, the court said.

“Upon receiving this application, the Special Division” was to “appoint an appropriate independent counsel,’” and “‘define that independent counsel’s prosecutorial jurisdiction,’” it said.

Those provisions were upheld against separation of powers challenges in Morrison.

The act doesn’t work any Congressional or judicial usurpation of executive functions, the 7-1 court said. It noted that the Special Division had no authority to appoint independent counsel on its own, or to supervise or control the investigation once under way.

The statute, which survived another decade after Morrisonwas used a handful of times to investigate government officials.

The most notable instance was the appointment of Kenneth Starr, whose investigation led to the impeachment of President Bill Clinton.

But none of the justices of the 7-1 Morrison court are still on the high court bench. Justice Anthony M. Kennedy had just been appointed and didn’t participate in the case.

Scalia’s lone dissent is what lawyers tend to remember when they think of Morrison.

It’s hard to tell what the majority of current justices would do if the issue came before them again, Michael B. Rappaport, a constitutional law professor at the University of San Diego Law School told Bloomberg BNA.

Justice Ruth Bader Ginsburg was on the lower court panel that considered the act before it got to the Supreme Court. She voted to uphold the act against separation of powers challenges.

But the majority opinion in Morrison is thought of much differently today than it was when it was first handed down, Rappaport said.

Indeed, in 2015, Justice Elena Kagan called Scalia’s dissent “one of the greatest dissents ever written,” Blackman noted.

People thought an independent counsel was good government following the Watergate scandal, Rappaport said. But attitudes began to change after politically motivated high-profile investigations, he said.

“Ken Starr’s witch hunt, which began with Whitewater and wound up with (Monica) Lewinsky, proved Justice Scalia correct,” Blackman said, referring to investigations of President Bill Clinton.

Moreover, the Supreme Court itself “seemed to repudiate its Morrison analysis” in 1997 in the “obscure case of Edmond v. United States, Amar said in a 1998 Washington Post article.

More recently, the Supreme Court cited Scalia’s dissent positively in an appointments clause case this term, NLRB v. SW Gen., Inc.

But Amar stressed that its likely unconstitutionality isn’t the only thing wrong with reviving the Ethics in Government Act’s provisions to appoint independent counsel. Passing legislation takes a lot of time and Trump can, and will, simply veto the bill if eventually passes, he said.

Moreover, legislation allowing a slate of judges to appoint an independent counsel isn’t needed to solve the problem, and likely wouldn’t, Amar said. 

Special prosecutors have been appointed before and after the Ethics in Government Act, he said. Archibald Cox Jr. was appointed special prosecutor by the Nixon administration’s Justice Department to investigate the Watergate scandal, he said. Nixon didn’t do that out of the goodness of his heart, but because the public demanded it, Amar said.

Similarly, an independent counsel was appointed to investigate the deadly 1993 siege of the Branch Davidian compound in Waco, Texas, even though the act had expired, Amar said.

The Watergate scandal was properly investigated without a statute mandating the appointment of independent counsel, Amar said. There’s no reason that can’t happen today, he said.

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