Precedent and custom are usually the lifeblood of public procedure, especially in legal matters. But they can be misleading.
President Donald Trump’s sudden firing of FBI Director James Comey is an example. It has produced a gusher of suggested precedents. One is President Richard Nixon’s firing of Special Prosecutor Archibald Cox, who had been appointed to look into the Watergate allegations. Cox sought to subpoena the Nixon tapes as evidence, and Nixon had him fired to prevent their release. The U.S. Supreme Court, in a major decision that sealed Nixon’s political doom, overruled his “executive privilege” claim and prepared the way to impeachment charges and Nixon’s resignation.
No such clear-cut legal issue is yet apparent in the Comey firing. The White House has issued a flurry of explanations and excuses, most of them implausible. The dilly is the suggestion that Trump has been furious ever since the election because Comey butted in with a continuation of the Hillary Clinton email flap a few days before the voting. Yet everyone knows that if Comey’s ill-timed intervention had any effect at all, it was to boost Trump’s popular vote in three Democratic states and hand him the electoral vote. Maybe that’s the idea that has made the “Narcissist-in-Chief” angry. He who has claimed, absurdly, that he actually won the national popular vote but had it stolen from him is easily angered by any suggestion that he is less than omnipotent.
So far, however, the only documented charge against Trump – apart from habitual misrepresentation of fact – is secretiveness, beginning with his concealment of tax returns that might document a Russian connection.
He claimed during the campaign that he could not release the returns while they were under IRS audit. That was patently untrue. Now he says they are irrelevant and is refusing to release them.
Meanwhile, Sen. Richard Burr of North Carolina, chairman of the Senate Intelligence Committee, has been touted by some admirers as a potential reincarnation of the late Sen. Sam Ervin. Ervin’s Senate select committee on campaign abuses began the unwinding of the Watergate scandal. Its most consequential discovery was that Nixon had taped his Oval Office conversations, some of which proved to be incriminating.
Burr is no Ervin, to say the least. He is a Republican rubber stamp with a record of partisan concealment – as, for instance, keeping secret his committee’s full report on the CIA’s torture practices. Ervin was a protector of civil liberties and a distinguished defender of public integrity: As a young legislator in the 1920s, he fought off the potential disgrace of a state “monkey law”; he served with distinction on the state Supreme Court; and as a freshman U.S. senator, he helped rid the country of McCarthyism. Before Watergate, he single-handedly defeated Nixon’s design for so-called “preventive detention” – or, in plainer words, imprisonment without trial.
A standing committee chaired by Burr and under the thumb of Senate Majority Leader Mitch McConnell would – and could – do nothing useful. Burr is not only no Ervin; he isn’t even a Howard Baker.
A more plausible idea is that of a special counsel or special prosecutor. Unfortunately, such an appointment would require the wholesale erasure of historical memory. Special prosecutors tend to spend gobs of public money – $60 million by Kenneth Star in his priggish pursuit of President Bill Clinton, to no avail but a failed impeachment. They often come up with flimsy charges and insinuations that hang in the air and are never adjudicated, as in one investigation of former Attorney General Edwin Meese; and they typically drag out their costly inquiries for years, without salient result.
The failure to renew the special prosecutor law was universally regarded in Washington and elsewhere as good riddance. Maybe a special prosecutor (of whom?) in the Comey matter would improve on the dismal record. The historical odds are against it.
So far, then, we must cope with a president unlike any before him, in act and attitude – certainly the most unschooled, impulsive and secretive in our history. If he is to be regulated, we need to forget precedents and think anew.
Contributing columnist Edwin M. Yoder Jr. of Chapel Hill is a former editor and columnist in Washington.