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Event: Trump Fires Comey... and Aftermath

Former FBI Director James Comey Before Trump Firing

President Trump fired FBI Director James Comey on May 9, three years into his 10-year term. There have been at least three significant revelations since then. First, Trump admitted to firing Comey because of the FBI's continued investigation of the Trump campaign's possible collusion with Russia and lack of attention to White House leakers. Second, Comey revealed that Trump requested Comey's personal loyalty at a January 27 dinner, which was not given. Third, Trump later requested that Comey drop the investigation into ousted National Security Advisor Michael Flynn.

This is a critical moment for American democracy. Up to now, most of Trump's questionable actions have either been rhetorical (such as attacks on the media and judiciary) or quickly quashed by the courts (such as the immigration order). It was possible to dismiss it all as either bluster or evidence the system was working. In contrast, Trump's alleged behavior with Comey threatens to critically erode democratic functioning if allowed to stand without sanction.

There is an important debate as to whether Trump's request to end the Flynn investigation constitutes criminal obstruction of justice. Yet the most worrying aspect of Trump's alleged conduct is not its legal implications, but its democratic ones. Pressuring an FBI director for personal loyalty and the cessation of investigations, then firing him when these favors are not granted, is unmistakably the behavior of a leader who intends to stand outside the rule of law—in other words, an autocrat.

In recent cases of democratic decline, such as Venezuela, Turkey, Hungary, and Nicaragua, the driving threat has typically come from the steady concentration of power in executive hands. Courts, prosecutors, legislative bodies, and other institutions were gradually pushed to the side and legally stripped or bullied out of effective powers of investigation. In Turkey, Erdogan has dismissed thousands of judges and prosecutors for alleged links to an opposition figure. In Venezuela, the Chavez government neutered the Supreme Court in 2004 with a court-packing scheme. Judges at all levels were soon forced to toe the government line—when a Venezuelan judge freed a government critic in 2009, she was swiftly jailed and held for years without trial.

In Hungary, the 2012 Constitution made the public prosecutor, state auditor, and electoral commission subordinate to the ruling party and allowed Prime Minister Orbán to radically remake the judiciary due to a shift in the retirement age. A political appointee was also put in charge of promoting and demoting judges and assigning court cases. The effect has been to make Orbán and the ruling Fidesz party largely immune from independent oversight.

Democratic stability requires having credible checks on executive overreach. However, the American system places a great deal of trust in informal constraints of the president. Despite the U.S.'s strong courts and legislative oversight, the institutions that can most effectively investigate crimes are part of the executive branch and thus easily (and often quasi-legally) impeded by the president. This includes Special Counsel Robert Mueller, who can be dismissed by executive-branch appointees.

What has held this framework together are strong norms against presidential interference, especially of investigations of the president and associates. Nixon's attempt to impede an investigation led his attorney general to resign in protest. Controversy erupted when Bill Clinton met in private with Attorney General Loretta Lynch while the Justice Department was deciding whether to prosecute his wife, despite no evidence they spoke about the investigation.

Trump's alleged actions arguably exceed even Nixon's abuse of power. Failing to investigate and sanction him is a green light for Trump and future presidents to dismiss legal oversight at a whim. Trump appointing a moderate to head the FBI is not an adequate response, as his actions have made clear that unfriendly investigations will lead to dismissal. This implicit threat is all that's needed to impede oversight.

The downside of relying on norms to constrain leaders is that norms can erode very quickly. Treating the recent revelations as normal politics or matters of jest is to abandon the principle that presidents must be constrained like all political leaders. Once down this path, it's rarely easy to turn back.


Michael K. Miller is an Assistant Professor of Political Science at George Washington University.


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