was a U.S. attorney in Philadelphia, and recently retired from private practice
is a law professor at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a former Bush Justice Department official
President Trump's bombshell firing of FBI Director James Comey has triggered urgent demands for an independent counsel. Trump's hints that he may have recorded his conversation with Comey - echoing the Watergate tapes that ultimately doomed Richard Nixon - have only added fuel to the fire, as have the White House's shifting explanations for the firing.
But critics who believe Trump is violating the limits of presidential power should not turn outside the Constitution itself for the answer. Instead, Republicans and Democrats should pause, take a deep breath, and let the Constitution work. The institutions designed by our Founders will survive Trump, as they did the presidents before.
Independent counsel is an optimistic oxymoron. It assumes that a disinterested outsider, accountable to no one, can suspend the forces of personal ambition and politics, and, Solomonlike, deliver pure justice. And when "special" prosecutors don't deliver justice, they look a little less special. Brazen State Sen. Buddy Cianfrani of Philadelphia once said of the special prosecutor investigating him: "If he can't get something on me, what kind of investigator is he?"
The Constitution makes a different assumption. It places the responsibility for prosecution in the executive branch, charging the president with the duty "to take Care that the Laws be faithfully executed." Creating an independent counsel transfers the executive's power over law enforcement to an entity that lacks accountability to the American people and will sap the presidency of "energy in the executive," as Alexander Hamilton called it. As he observed in Federalist 70, "good government" requires "energy in the executive," and a vigorous president is "essential to the protection of the community from foreign attacks" and "the steady administration of the laws."
Recent "special" investigations outside this constitutional framework confirm Hamilton's wisdom. Regardless of what we think of the underlying crime, Ken Starr's probe of Bill Clinton wasted enormous political resources, distracted the attentions of both the president and Congress from their main jobs, and resulted in nothing. The independent counsel investigation into Iran-contra used the criminal law to wage a separation-of-powers dispute between President Ronald Reagan and a Democratic Congress over control of foreign policy.
So regardless of the merits of Comey's firing, it is time to get back to constitutional basics.
Our system calls for a two-track investigation. The FBI will continue to investigate any alleged federal crimes, with prosecutorial decisions made by the Department of Justice. One of Comey's most egregious actions was his blatant violation of this principle in his unilateral announcement that Hillary Clinton would not be prosecuted, without even token consultation with Attorney General Loretta Lynch.
Going forward, the FBI should aggressively investigate any evidence of criminal collusion between Russia and the Trump campaign. It will use standard investigative techniques. First, little fish lead to bigger fish; deals and cooperation from fringe players build cases against more significant players. Second, follow the money. Former Trump campaign chairman Paul Manafort's consulting payments from Ukraine were an early focus, even though they occurred years before the campaign, and last week, the FBI raided an Annapolis political consulting firm with links to Manafort.
Comey's departure, if anything, will energize the FBI probe. At the end of the bureau's investigation, the decision as to whether criminal charges are warranted should be made by the relevant U.S. attorney or the Department of Justice. Career agents at the FBI and prosecutors at DOJ will make recommendations on whether to bring charges that, if overturned by Trump, will generate a true constitutional crisis.
Second, Congress will perform its constitutional role. Both the Senate and House intelligence committees are probing Russian meddling in the 2016 presidential election, and the Senate committee has subpoenaed documents from former national security adviser Michael Flynn. Previously undisclosed payments to Flynn from the Kremlin-sponsored television network RT are under scrutiny.
Like the FBI investigation, the furor over Comey's dismissal will only invigorate the congressional probes, which have the power to subpoena witnesses and hold public hearings to lay out the facts. If Congress finds that Trump campaign officials violated federal law in dealing with Russian intelligence, it can refer criminal charges. If it concludes that Trump has obstructed justice by firing Comey, it can take appropriate actions.
Finally, there have been calls for the creation of a select committee in Congress, to investigate the Russian issues independently of the political leadership of Congress. Leaving aside the fact that both the Senate and House intelligence committees are already "select" committees, it is difficult to overlook the fact that the ultimate success of such committees depends heavily on who sits on them. The Watergate select committee is generally viewed as having been a success, and has served as the model for subsequent select committees. The House Select Committee on Benghazi, in contrast, was widely viewed as being excessively partisan.
Comey's farewell letter cites his long-held belief that "a president can fire an FBI director for any reason, or for no reason at all." For once, Comey got the Constitution about right. His dismissal allows the regular mechanisms of justice to go to work.
Even as the Trump White House gives various reasons for Comey's ouster, the FBI will continue to pursue links between the Trump campaign and Russia. If the investigation leads to criminal charges, career prosecutors can decide whether to prosecute. Likewise, the Senate and House committees will continue their investigations, and provide the appropriate forum for judging Trump.
Let the U.S. Constitution work.