President Trump’s dismissal of FBI Director James Comey has generated an immediate and powerful backlash—and for good reason. The president just fired the person overseeing an investigation into his campaign’s possible collusion with Russia to try to throw the U.S. election. At a minimum, this looks like an effort to interfere with an investigation that could unearth an unprecedented betrayal of the national trust. At worst, it actually is such an effort.
Still, some lawmakers and commentators are suggesting that we should reserve judgment. They say we should await more evidence as to the president’s actual motivation, and that we should see whom he nominates to replace Comey. Here’s why they’re wrong.
We should waste little time on the ludicrous claim that President Trump fired Comey because he spoke publicly about then-candidate Hillary Clinton’s careless use of a private email server when she was secretary of state. Regardless of whether that constitutes a reason to fire Comey, it is manifestly not Trump’s reason. Indeed, both President Trump and Attorney General Jeff Sessions previously heaped praise upon Comey for these very actions. The notion that they suddenly consider this to be a fireable offense would be laughable if it weren’t so insulting to the public’s intelligence.
Nor is it reasonable to demand ironclad “proof” that Trump was motivated by the Russia investigation. Even in a criminal case, jurors are permitted to draw reasonable inferences from known facts and circumstances. Every shred of circumstantial evidence—from the timing of the firing, to the wording of the president’s letter, to a White House spokesperson’s suggestions that we should now “move on” from the Russia inquiry—suggests the president’s purpose was to derail the investigation. Indeed, the invocation of such a blatant pretext for the firing only strengthens the likelihood of an illicit motive.
Nonetheless, suppose for a moment that Trump’s motive was something other than interfering with the FBI’s investigation. Assume, for instance, that he felt Comey was an ineffective leader of the FBI. Other than anti-discrimination laws and other such provisions, there are no legal constraints on the president’s ability to fire the FBI director. Why, then, should the firing cause concern?
The answer is simple: We cannot treat the firing of an FBI director who was probing possible criminal activity by the administration as equivalent to the firing of any other FBI director. Regardless of Trump’s actual motivation, the circumstances of Comey’s firing will inevitably lead the next FBI director to hesitate before pursuing a robust inquiry into the Trump campaign’s potential involvement in Russian meddling. That person will not require “proof” that a rigorous investigation will generate a pink slip. For anyone interested in keeping his or her job—and that is most people—it will be enough that Comey lost his after presiding over just such an investigation.
For the same reason, President Trump cannot redeem his action by nominating an FBI director who has a reputation for independence and integrity. It is theoretically possible that a person of extraordinary character would ignore the message sent by Comey’s firing and pursue the evidence wherever it leads. But we will never know. If the new director does anything short of recommending that the Department of Justice bring serious charges against multiple Trump aides, the public will be left to wonder whether the investigation would have proceeded differently had Trump not fired the person who first led it.
Indeed, the public may rightly lose confidence in law enforcement more generally. Trump’s action sends the signal that he is willing to fire those who enforce the law in a manner that goes against his own interests. And Trump—along with top officials in his administration—have many, many interests that could be affected by impartial enforcement of the law. More than any president in history, for instance, this one stands to be personally affected by the range of laws and regulations that govern the conduct of business. Leaving aside Trump’s efforts to gut or rewrite these rules, can the public trust that he and his associates will be held to them?
The rule of law is exquisitely sensitive to appearances. People comply with the law if they believe it will be enforced, and if they trust that it will be enforced fairly. Trump’s inner circle may now feel that law enforcement will stay off their backs. Heads of law enforcement agencies may feel they must tread lightly in matters affecting top officials’ interests. And Americans may wonder whether the president and his associates are indeed above the law. These predictable (indeed, inevitable) effects of Trump’s move are deeply threatening to the rule of law, no matter what motives lurk in the president’s heart.
This is not to say that an FBI director who is investigating administration officials could never be fired. One could imagine a situation in which a president cited a reason for the dismissal that was not only compelling, but remotely plausible as his actual motivation; acknowledged the legitimacy and importance of the investigation the director had been conducting; and took steps to preserve its independence, such as calling for the appointment of a special prosecutor to take over the work. In such a case, it would be more difficult to draw inferences of improper interference. Those are radically different circumstances from the one we face here.
See also: Trump’s Tuesday Night Massacre
The damage caused by Trump’s action cannot be undone, but it can be mitigated. There must be an investigation into Russia’s interference that both is and appears to be independent. The Senate should refuse to confirm Comey’s replacement until the Justice Department appoints a special prosecutor to lead that investigation. It cannot credibly be overseen by the very official who was tasked with drafting a justification for Comey’s firing, as will otherwise be the case.
Congress also should create its own special committee to conduct a parallel investigation—one that could look beyond the narrow question of whether sufficient evidence exists to bring criminal charges. Existing committee investigations are proceeding too slowly, and are hampered by limits on the committees’ jurisdictions and perceptions of partisanship.
Finally, Congress should obtain more details about Comey’s firing. Given the strong appearance of impropriety, the need for independent investigations by a special prosecutor and a special committee does not turn on Trump’s actual motive. If, however, Congress were to examine all available evidence and conclude that Trump indeed sought to shut down the FBI’s investigation, that finding would have additional implications. The obstruction of justice by administration officials would call for action beyond shoring up the integrity of the Russia investigation.
Congress should take these actions without delay. To wait for more information to emerge is to ignore the facts we already know. The president of the United States has fired the person who recently announced he was investigating the administration’s activities, citing actions that took place months ago and that the president previously lauded. These actions, on their face, pose an immediate and ongoing threat to the rule of law. We cannot afford to simply watch this threat unfold.
Elizabeth Goitein is the co-director of the Liberty and National Security program at the Brennan Center for Justice at NYU School of Law.