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Expecting to serve 10 years in the job, James Comey, head of the FBI, was despatched after three. Even discounting the Trumpian theatrics, this was a dramatic moment, because the FBI has been investigating contacts between the president’s campaign team and the Russians, whom intelligence agencies have concluded did meddle in last November’s election, for the benefit of Trump. Also, an alleged request for extra resources for the FBI probe had just been made, which hardly suggests an investigation that was going nowhere. The president, in other words, can reasonably be painted as sacking the policeman who was probing his electoral win.
But the situation did not—at least not immediately—provoke a constitutional crisis. For one thing, there is no ambiguity in the legal position: the president can dismiss any federal employee. Presidential power has been built over the decades, with Trump’s predecessors—Barack Obama and George W Bush—relying heavily on direct orders. Trump had already sacked Acting Attorney General Sally Yates in January for questioning his “Muslim ban.” More generally, he has flexed the muscle of his office. Notoriously, he refuses to release his tax returns because he doesn’t technically have to; he has taken a limited view of potential conflicts of interest between his presidential role and previous business activities; and, he questions how federal law applies to him as the executive in chief, disdaining the spirit of the rule of law.
It is all of a piece with a febrile environment, in which the informal protocols of democracy are being trashed. But like any democracy, unless there are some such norms, the rules will not function. The polarisation of the parties and their voters has never been so marked, reducing the room for compromise. The Republicans, in particular, have developed a disregard for precedent. They showed it when they refused even to discuss Merrick Garland, Obama’s nomination to the Supreme Court, and again when they deployed the “nuclear option” in the Senate to ram through the appointment of Neil Gorsuch, Trump’s pick for the same post, using their wafer-thin majority to do away with the traditional presumption that a super-majority is required to finalise such discussions.
In this environment, it is hard to see how the FBI row can be brought to a head. There have been excited comparisons with Richard Nixon, but in his day the Democrats ruled the roost in both the House and the Senate. Today, it would require votes from
Republicans, who are fixated on tax cuts, to nominate an inquiry with real teeth. Yes, members of Congress can invite Comey to a congressional hearing and probe him about why he got fired—and the Democrats will— but they are unlikely to learn much. Congressional hearings into Russian influence have been haphazard and unrevealing. Trump advisers have been summoned and asked to divulge emails. But even if there were a smoking gun, Congress is not in a mood to find it. The FBI should be able to do a better professional job, as long as it’s allowed to.
But if Trump is vulnerable on any front, then it should be the Russian connection. It’s not just the left that resents foreign influence. The constitution has an “emoluments clause” to deal with financial entanglements. Even before they arrived in the White House, team Trump faced questions. Yates warned that Michael Flynn, the new president’s pick for National Security Adviser, had compromising dealings with a Russian official. In January, Flynn quit after admitting he misled the vice president about a conversation with Russia’s ambassador. Attorney General Jeff Sessions—the nation’s top law officer— had to recuse himself from the Russia probe when his own previously undisclosed contact with the same ambassador was exposed.
No one has definitively contradicted Trump’s claims that the rumours about his business dealings and his campaign team are “fake news.” We can only speculate on where the FBI probe was heading. But speculation is encouraged by the failure to provide convincing reasons for moving against Comey. Trump’s letter cited Justice Department concerns about Comey’s conduct in relation to Hillary Clinton’s secret email server. Rod J Rosenstein, the new Deputy Attorney General, excoriated Comey’s initial handling of the charges against Clinton. But before the election, Trump publicly hailed Comey’s late repoening of the probe. If Comey has now alienated Trump, it is more likely because Comey said he felt “nauseous” at the thought he had swung the election.
Perhaps Trump wanted to draw the sting from the Russian probe, but he has put it in the spotlight. A neurotic line in his dismissal letter—“I greatly appreciate you informing me, on three separate occasions, that I am not under investigation”—won’t carry much weight with anyone not already on his side. People are suspicious, and slowing down the FBI hardly allays such concerns.
