The Comey Memorandum and the Take Care Clause

Last week, President Trump created another firestorm when he fired James Comey as Director of the Federal Bureau of Investigation (FBI). On Tuesday, several news organizations confirmed that Comey wrote an internal memorandum on February 14 indicating that President Trump asked him to shut down the FBI’s investigation of former National Security Advisor Michael Flynn. If true, the Comey memorandum would raise significant political and legal problems for the President.  The memorandum quoted President Trump having said, “I hope you can see your way to letting this go, to letting Flynn go.”  According to Comey, President Trump asked him to stay behind after a counterterrorism briefing and made the request while the two were alone.

If true, it is a stunning revelation, adding to the growing evidence of Trump administration political interference in an ongoing investigation of Trump associates’ ties to Russia and Russia’s efforts to corrupt the American presidential election. It would require us to contend with whether President Trump committed felony obstruction of justice. It would also raise a host of questions about other officials’ knowledge of the memorandum. For example, acting FBI Director Andrew McCabe testified before Congress this week that “there has been no effort to impede our investigation to date.” In addition, Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein will have to address the question of whether they were aware of any such memorandum or the exchange between the two men during the course of Comey’s firing.

From my old vantage point of White House Counsel’s office, I want to focus on two particular issues: Trump’s White House contacts policy and the Take Care Clause.

First, these reports would confirm the President personally interfered with Department of Justice investigation function in a particular matter directly related to the President and his associates. That would be a gross violation of the longstanding, bipartisan White House policy prohibiting such political meddling. The Trump White House contacts policy articulates the purpose “to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence.” The policy does specifically contemplate the President’s rare need to contact Department of Justice officials about pending matters, but only in rare circumstances that would likely involve the president’s need for intelligence about national security threats. That is not the case here. Moreover, as a matter of basic prudence and good political sense, White House lawyers would categorically counsel against putting the President in any position vulnerable to an accusation he violated the White House agency contacts policy.  

Second, by interfering with a pending investigation of his campaign officials, business associates, and government appointees, the President would violate the Constitution.  Article II, Section 3 of the Constitution requires that the President “Take Care that the Laws be faithfully executed.” The President’s obligations under the clause refer to a “law” to be “executed” “faithfully.” As such, the President’s Take Care obligations must meet the “law” at issue.  Federal prosecutors and law enforcement officials derive law enforcement role from the President’s constitutional Take Care Clause obligation. However, Congress created the Department, created the FBI, and established their investigative and prosecutorial responsibilities by means of legislation. Therefore, the President’s constitutional obligations flow from the integrity of those functions as provided for by law, rather than the Department’s position below the President on an organizational chart within the Executive Branch.

The opening paragraph of the first Article of Impeachment passed out of committee against President Richard M. Nixon stated that, “in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice.”  Included in that Article was the allegation that Nixon had “interfered…with the conduct of investigations by…the Federal Bureau of Investigation.”  Article II alleged Nixon had “failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted…executive entities.” The House’s Articles of Impeachment against President Bill Clinton also accused him of violation of his Take Care Clause obligations, although without allegations of FBI meddling.

Impeachment is a political determination that is defined by a debate about the law. It is also a grave remedy in that it overturns an election result. There is no practical political will in Congress for impeachment at present. But Trump lit a fire of debate about the law that could ultimately inform impeachment deliberations.

In the wake of Watergate, Attorney General Bell declared that “the Department must be recognized by all citizens as a neutral zone, in which neither favor nor pressure nor politics is permitted to influence the administration of the law.”

I have been working on a law review article titled Justice Department Independence and White House Control. I argue that when Congress established the law giving rise to the prosecutorial function, the Take Care Clause commands that the President protect the integrity of prosecutorial, law enforcement, and intelligence functions from political interference. That principle would be even more acute when the investigation requires protection from the President himself. The Comey memorandum, if it exists, would document a White House policy violation of constitutional dimensions.

This post was originally published the night of May 16, 2017. 

Image: Getty

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.