Presidential power and its possible abuse in the Trump-Comey context

David McIntosh, president of the Club for Growth, today defended the right of President Trump to direct the FBI investigation into Russia interference in the 2016 presidential campaign and possible wrongdoing by Michael Flynn. McIntosh, a co-founder of the Federalist Society, made the defense at the Federalist Society’s “Executive Branch Review Conference.” He said:

President Trump acted appropriately if he gave guidance to Director Comey on an investigation. It is important for us to step back and remember that, under the Constitution, the President has the authority and power to enforce the laws. There’s nothing in the Constitution about an FBI Director.

The FBI director reports to the President and it is the President’s decision to delegate authority on investigations. In delegating that authority, Presidents have wisely chosen to insulate the FBI from political interference. But the President still has the power and authority to direct the FBI how to do their job. Congress, in its critiques of the Executive Branch, should not overstep and try to direct or limit the President’s legitimate exercise of his Article 2 powers.

It’s true that the president has the power to direct the FBI on how to do its job. In my opinion, however, the president abuses that power if he directs the FBI on how to investigate matters in which he has a personal or political stake or directs the FBI to go easy on a friend or associate.

I should note that, as of now, the publicly available evidence does not show that President Trump did any of this. Even the rumors circulating suggest that, at most, he only encouraged the FBI director to consider going easy on Gen. Flynn. If he did that, I would consider it a borderline abuse (and certainly not obstruction of justice).

I agree with McIntosh that “presidents have wisely chosen to insulate the FBI from political interference.” This statement is confirmed by what we’re seeing now.

Trump’s alleged comments to Comey and his subsequent dismissal of him are fueling calls for the appointment of a special prosecutor. In lieu of doing so, and to lower the temperature, Trump may feel constrained in his selection of a new FBI director.

Reportedly, his list of candidates is down to Joe Lieberman; former Oklahoma governor Frank A. Keating; Richard McFeely, a former FBI official; and acting FBI director Andrew McCabe. Lieberman is a former Democrat; a man of the center-left; and a good friend of Trump critic Sen. John McCain. McCabe is the husband of a Democrat who, when she ran for office in 2015, received half a million dollars from Terry McAuliffe’s political action committee.

Perhaps they are on the list just for show. But the fact that Trump’s conduct has required him, at a minimum, to put on a show is troubling.

Under David McIntosh’s leadership, the Club for Growth strongly opposed Trump’s candidacy for the Republican nomination. It spent millions of dollars trying to prevent it. Why has he weighed in with a defense of Trump?

I understand McIntosh to be a strong proponent of broad presidential power — the unitary executive theory and so forth. I think the position he took today is a principled one based on how he views the presidency.

But others defending Trump’s power to direct the FBI in the context of its investigation of Russia, Flynn, etc. might ask themselves what their view would have been had President Obama said to Comey what Trump is alleged to have said, and then, a few months later, sacked the director.

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