Comey Firing Raises Questions About Independence of Investigation, Though It Passed Constitutional Muster, Law Expert Says

LAWRENCE — President Donald Trump fired FBI director James Comey Tuesday, setting off questions and criticisms about the FBI’s ongoing investigation into possible collusions between Russia and Trump’s campaign. Trump cited Comey’s handling of the investigation into Hillary Clinton’s private email server for government business, and politicians on both sides of the aisle have questioned that rationale and some have called for the appointment of an independent investigator to take over the case.

Richard E. Levy, J.B. Smith Professor of Constitutional Law at the University of Kansas School of Law, can discuss the firing, the president’s authority to fire the FBI director, implications of the firing for independence of the FBI and investigation of the executive branch, the history of independent prosecutors and related topics.

Trump had the authority to fire Comey, Levy said, though such actions have been a rare occurrence. The bigger question surrounds the implications of the firing.

“The President’s ability to fire the FBI Director at will and replace the director (subject to Senate confirmation), arguably compromises public confidence in the independence and integrity of any investigation into the President or other high ranking officials. Nonetheless, this circumstance does not render the action illegal or unconstitutional,” Levy said. “Any consequences for this action will be political. If we are to draw a parallel to Nixon and the ‘Saturday Night Massacre,’ although Nixon had the power to fire the first special prosecutor, he was forced by the politics of the day to hire another one who was independent enough to conduct a real investigation. The rest is, as they say, history. It is unclear whether the politics of the day will force President Trump to nominate an independently minded FBI director or, alternatively, name a special prosecutor.”

Whether or not a special prosecutor will be named remains to be seen. Following President Richard Nixon’s resignation, Congress enacted a law providing for the appointment of “independent counsel” to investigate allegations of executive wrongdoing. The law was upheld by the Supreme Court, but was later allowed to lapse. Levy can comment on the law, its history, role in the Ken Starr investigation of President Bill Clinton and how a potential independent investigation would proceed today.