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Comey’s firing and the nature of law

May 12, 2017

T. A. Frank’s take on Comey’s firing seems about right to me:

So what we have is something that’s inescapably comical yet deadly serious. On the bright side, Trump’s clowning is so blatant that it prevents him from being half as subversive as the George W. Bush and Dick Cheney White House, which quietly politicized the civil service and breached norms far more sacred (like not torturing captives) than any touched by Trump. On the dark side, it’s early yet, and if a president can get away with firing anyone investigating White House malfeasance, then he can get away with a lot more — just about anything, really.

Well, it’s early yet. And though it’s early, it’s important to recognize that a nation’s law can be undermined by politicians who attend to its letter, while sidestepping its spirit and purpose. A president who wants to bypass the senate check on his appointments to high office could purposely make appointments to lower-level positions that do not require confirmation, and then remove those currently occupying the higher office, allowing his hand-picked capo to ascend to that office in practice, even if their official title remains “acting comptroller” or “interim comptroller.” Why bother with ever filling the office, when it is so easy to bypass the senate? (Why bypass a senate your party controls?)

Well, Trump has done that only once that I know. Perhaps his plan is now to appoint Noreika officially for senate confirmation. Like Comey’s firing, it smells, even if by itself it doesn’t mount to a constitutional crisis.

By itself. Yet.

These are the kind of things that combine. Like exposure and dehydration, they don’t matter much at first. They can be ignored for quite some time. And then, their severity sneaks up, and they matter a lot. At some point, the defense that “hey, this still is within the letter of the law” won’t matter because that law won’t matter. The question is how to scry when we’re on that course, and how far along it. Conor Friedersdorf makes the case for earlier caution.

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