Vox on Comey Firing: This Isn't The Saturday Night Massacre and The Constitution Will Be Just Fine

Posted: May 15, 2017 1:50 PM

As I’ve said before, even a broken clock is right twice a day. Conservatives often mock Vox, especially when one of their pieces said that there was a bridge that connected Gaza and the West Bank (yes, you read that right). But given the hysteria from the Left over the firing of James Comey by the FBI, it's one of the few publications from the liberal blogosphere that featured a post from a law professor that sought to calm the waters. Richard A. Epstein of New York University School of Law wrote that the Comey firing isn’t the Saturday Night Massacre and the Constitution will be just fine. Now, he does mention that obstruction of justice is an impeachable offense; he doesn’t state that the president committed such an act. He also said that it’s too early to accurately render a verdict on this decision. Also, Epstein doesn’t see the need for a special prosecutor at this point. It’s a pretty solid analysis that’s been lacking in the era of outrage from the Left.

For starters, Epstein noted how the Rosenstein memo pretty much made the case for Mr. Comey’s dismissal. The deputy attorney general carefully laid out breaches in protocol in a rather damning three-page document that was backed up by former attorneys and deputy attorneys general. The timing and the communications from the White House over this dismissal is another matter, but back to the left wing outrage. Is this the Saturday Night Massacre? Is it more dangerous that the Saturday Night Massacre? Is this the workings of a despot? Are we in a constitutional crisis? Epstein says no [emphasis mine]:

In effect, one difficulty with that extravagant assertion [Saturday Night Massacre] is that it makes Comey de facto immovable from office so long as he continues to conduct this investigation. That cannot be the proper analysis because Comey has many other administrative responsibilities, including maintaining morale inside the office. No one should be able to guarantee his term in office by conducting a nonstop investigation of the president.

In this case, moreover, there has been to date no credible evidence of the improper linkage between team Trump and the Russians. This situation is, to say the least, a far cry from the situation with the Saturday Night Massacre in October 1973 when Cox had properly requested access to the tapes in the president’s possession — tapes that included evidence of Nixon’s deep involvement with the Watergate burglary. Now, that counts as obstruction of justice. In the present case, nothing come close to that unless and until it is established that Trump is in possession of tapes or documents that show a similar level of involvement.

Nor is there anything to the claim that Trump has acted as a despot. Despots remove people in order to take over all the organs of government themselves. Cassidy seems to think the president has it within his power to appoint a successor to Comey entirely on his own, when the position requires confirmation by the Senate.


Nor is it clear to me that we need to appoint a special prosecutor to deal with this problem. Right now the details on this proposal are hazy at best, but unless there is some new legislation, any such prosecutor would operate inside the Department of Justice, not outside of it. The dangers of a runaway prosecution by an independent prosecutor were vividly pointed out by the late Justice Scalia in his stirring 1988 dissent in Morrison v. Olson. There is no need to revive that sorry chapter in American jurisprudence today.

And the demand for a special prosecutor raises as many questions as it answers. Who should make the appointment? Could it be anyone in the Trump Department of Justice? Attorney General Jeff Sessions seems out, given his decision to stay clear of the Russian investigation. Rosenstein seems compromised because he wrote the memo that led to the firing of Comey. Will it be necessary to come up with some novel procedure to fill the gap, knowing that there is no person on the face of the planet who has the unique blend of talents, independence, stature, and fortitude to taken on so thankless a task?

It could take months for this matter to be sorted out, and it is surely in no one’s interest to delay the investigation until the prosecutor is named and is able to fill all the positions needed to carry out the job. An appointment of this sort ought to await some clear sign that the reconstituted DOJ is utterly unequal to the task — at which point the pressure could again mount. In the meantime, anyone outside the DOJ, including committees in the House and Senate, and any independent newspaper, is entitled to mount their own investigation to see if they come up with something concrete on the supposed Trump-Russian connection.

So, you can see how all this frothing at the mouth from liberals over the firing of Mr. Comey, who they all wanted to remove from the FBI, is not only the epitome of hypocrisy, but entirely unhinged. Trump is a despot, but he hasn’t taken over the FBI proper and will need the Senate to confirm his new nominee. This is the Saturday Night Massacre, except that it’s not since there is no evidence of collusion between the Trump campaign and Russian intelligence— whereas the Watergate Tapes had President Nixon and his White House Chief of Staff H.R. Haldeman plotting the cover up.

I think Democrats on some level know this, or at least I’ll make a wager that they do. I think they know that there probably won’t be a smoking gun concerning collusion. As with the cabinet appointments, they want to delay, delay, and delay some more, preventing the Trump White House from moving efficiently through their agenda items. It’s a way for the administration to expend political capital, while keeping this so-called scandal fresh in the minds of voters for the upcoming 2018 midterms. What better way to accomplish that than with a star search for such a special prosecutor? Hence, the threat from Senate Democrats of blocking a confirmation vote on a new FBI director until a special prosecutor is found. They want to keep fanning the flames, even if it makes them look totally insane. Hey, if it’s Raging Waters as the face of this, I’m okay with that.

Axios had a Senate source tell them how Democrats will drag this Comey episode out:

Establish a litmus test for Republicans who care about the integrity of the Russia investigation: to appoint a special prosecutor.

Call for Attorney General Jeff Sessions to recuse himself from deciding Comey's replacement, given the new FBI director will be overseeing the investigation into whether the Trump campaign colluded with Russia during the election.

Extract a full explanation from Rod Rosenstein about his role in Trump's firing of Comey. The deputy attorney general will brief senators this week and they'll have a chance to grill him.

Urge Republicans to support Democrats' calls for Comey to testify before a congressional committee.

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