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Legal News column: Living through the accountability crisis

SCOTT PIEPHO
Cases and Controversies

Published: May 26, 2017

As we process events of the last couple of weeks, we are asking ourselves, among other things, what do we call it? The ongoing controversy over the president’s firing of FBI Director James Comey, has generated a robust debate among legal types over whether this is a constitutional crisis.

Immediately after President Donald Trump fired Comey, calls went out from news organs to law professors and other legal experts to opine on the question.

The experts sorted themselves into two camps. On one side—call it Team This Is Fine—argued that the president was within his rights to fire Director Comey both because the FBI director serves at the pleasure of the president and because Comey’s mistakes during the investigation of Secretary Hillary Clinton constitute cause for removal.

Team This Is Fine have continued their line of argument even as evidence has mounted that the president’s real motivation was to influence or quash the ongoing investigations into his administration’s ties to Russian officials.

The other side—Team The Sky Is Falling—argued that the stated reasons for the firing did not appear to align with the actual reasons, and that firing Comey defied well-established practice.

The two sides generally talk past each other, in large part because they don’t bother to define the term “constitutional crisis.” Writing the Monday before this column appears, I will not attempt to predict what new developments color this discussion, but if it is worth deciding whether we are living through a thing, it is worth defining what that thing is.

So what is a constitutional crisis?

Of the two clearest examples of constitutional crises in our history, one (South Carolina’s declaration of secession) ended in conflagration, while the other (President Andrew Jackson’s defiance of the Supreme Court order against removing Cherokee people from Georgia) was conveniently forgotten. Neither left behind a clear definition of the term constitutional crisis, mostly because people were too busy trying to survive and/or forget about the fallout.

Using those two as examples, we can define a constitutional crisis as one in which either a coordinate branch of government or one or more state actors refuses to abide by a constitutional rule that should resolve a political dispute.

Under that definition, the controversy over Comey does not represent a constitutional crisis. The Constitution offers a clear rule—executive officers are appointed and may be removed by the president—that resolves the controversy.

That does not end questions about what we are seeing. While the Constitution offers the rule, our political system has operated under a consensus for a different practice. For several presidential administrations, both parties have accepted appointing the FBI director for a 10-year term. The consensus further holds that presidents will respect the independence of that director by only removing him for serious misconduct or incompetence. President Trump defied that convention.

Upending a long-established norm in our politics seems like a troubling change. Perhaps even a crisis. So what do we call it?

I propose that we call this an accountability crisis. The signal feature of this moment has been an executive branch that delegitimizing those facets of our system that traditionally hold that branch to account. The Comey firing is only the latest incident in our ongoing accountability crisis. It is of a piece with the president’s attacks on judges, independent executive agencies, Congressional Democrats, career agency employees, and the press.

Identifying the present moment as a crisis of accountability highlights a fundamental truth about our system. We don’t impose accountability through laws as much as through a government culture. The protections our Constitution offers the executive branch against Congressional overreach also allow the executive to opt out of a great deal of day-to-day accountability.

Most of the unavoidable accountability is political. People have the option of voting out representatives who will not hold this president accountable.

Even the constitutional procedures for holding the executive accountable—impeachment or 25th Amendment removal—are inherently political. We cannot count on Congress invoking them unless a groundswell of the electorate supports that kind of challenge. And we still risk a genuine constitutional crisis if the White House defies subpoenas from either Congress or the recently appointed special counsel.

Serious people have publicly called for initiating the removal of the president. History tells us that if removal happens, it will unfold over a longer time frame. Through it all, we need to remember what is at stake. We face a crisis because we elected a president who does not believe in the basic institutional norms that hold him accountable.


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