All of the articles I’ve read recently about Trump’s firing of FBI Director Comey mention somewhere that it is the President’s prerogative to fire the FBI director? My Google-Fu skills appear to be lacking and i cannot find anywhere what it is written that he can do that.
The FBI Director has a ten year term, which suggests to me that POTUS does not have the authority to fire the Director and thus shorten his term, but I can’t prove that.
Help resolving this issues would be appreciated. Thanks.
https://www.fbi.gov/history/directors
I don’t have time right now to look up both laws, but I bet the language probably says the Director serves at the pleasure of the president, or something similar.
Aside from the saga of the Johnson impeachment, I’m sure there’s an extensive legal background on the President’s powers with respect to appointments to Executive Branch positions, which I will defer to the more knowledgeable.
However, in terms of statute, it is incredibly rare for statutes to reference the termination of a politically appointed position. That is, the law will almost always be silent on removing a Cabinet or subcabinet official from office, as opposed to your implied expectation that statutes would affirmatively give the President the power to remove an official.
The only exceptions to this, uh, tradition that I’m aware of tends to be in the appointment of officers to so-called “independent” agencies. Statues direct that appointments to bodies like the Federal Communications Commission or the Federal Reserve, may only be removed by the President for “good cause” or similar terms. That restriction does not apply to the FBI Director.
Can a President remove a Supreme Court judge, since he picks them?
Article III., Section 1.
Resignation (retirement), death, or impeachment are the only options. The president cannot remove a federal judge by any other method.
This was the constitutional issue which contributed to the impeachment of President Andrew Johnson. He inherited his Cabinet from Lincoln and quickly began butting heads with them, particularly Edwin Stanton, the Secretary of War.
The Radical Republicans in Congress strongly supported Stanton and passed the Tenure of Office Act, which provided that the President could not fire Cabinet secretaries without the consent of the Senate.
Johnson considered that the law was unconstitutional, because as President he should have the power to pick his own Cabinet, and to fire anyone who was not fitting with his policy choices.
He fired Stanton. The Representatives impeached him, citing that as one of the grounds. The Senate acquitted him by one vote short of the 2/3 needed for a conviction.
Sixty years later, the Supreme Court addressed the issue when the President of the day fired a postmaster, even though a statute restricted his ability to do so. The Supreme Court found that the statute restricting the powers of the President to fire someone in the executive branch unconstitutionally restricted the President’s constitutional authority over the executive branch.
As part of his judgment in the case, Chief Justice Taft also stated that the Tenure of Office Act had been unconstitutional, for the same reason: the President’s power to choose his advisors also included the power to dismiss them.
Thank you for the information Duckster. I do have the time, and the cited statues are notable for being terse.
Public Law 90-351 states in pertinent part:
The law’s next sentence is Title VII which concerns unlawful possession of firearms.
Public Law 94- States in pertinent part:
Neither one says anything about the issue of by who, when or why the Director can be removed from office.
And I would only expect it to say anything about dismissal if there were some reason why the President could not dismiss the Director by simply doing so , for whatever reason the president sees fit.
There's no reason to have statutes describing ordinary procedures - most positions in the administration do not require the advice and consent of the Senate and therefore those positions don't have separate sections of the law stating that he president can fill those as s/he sees fit. The positions which require special procedures ( such a impeachment) for removal will have those described, while there is no statute that specifically says a speechwriter (for ex) serves at the president's pleasure. Most positions also don't have a limit on the *maximum* amount of time a person can serve , so that a law was the only way to set a maximum term for the FBI director- and that's really what this is. It was put into place to avoid another Hoover In fact, the FBI's website describes it as " limiting the FBI Director to a single term of no longer than 10 years".
A wrongful discharge suit “Comey vs. United States” would be interesting though I think. I would think the FBI Director does not serve at the pleasure of the president, but could be fired for normal firing reasons (ie illegal act, tort, bad decision-making, etc) but I just don’t think an investigator getting too close to the POTUS’s info is just reason for being fired. I know “justice” and “legality” are two distinctly different things in real life, but that’s no excuse.
The President can fire any member of the Administration that he has the power to appoint for any reason whatsoever (absent any valid limitation on that power by the Constitution or Congress). As shown above, attempts by Congress to limit that power of the President to appoint or fire officers of the Administration are generally found to be unconstitutional.
President Trump could have fired James Comey for disliking the way he parted his hair, and the Director would have had no legal recourse.
There is nothing in the statute to support this statement.
I don’t think that there is any doubt whatsoever that the President can get rid of political appointees. See the caselaw mentioned above. But could there be cases where firing an appointee leads to more serious problems? Of course. See “Saturday Night Massacre” for example.
There is nothing in the statute to contradict it either, save for the provision limiting the term to 10 years. If the FBI Director was a cabinet member or White House staffer, obviously he/she serves at the President’s decision. A law enforcement officer like the FBI Director is different though, methinks, although it appears there is nothing for (or against) that position in the literature.
Putting aside the current situation, I wonder how US history would have been different if President Eisenhower had said, “We can fire that S.O.B. J. Edgar Hoover? Really? Give him his walking papers!”
It’s happened before.
In July 1993 Bill Clinton fired FBI director William Sessions. Sessions was accused of improperly using government funds, but Clinton’s opponents claimed the President was playing politics, and Sessions was never formally charged with any crime.
In G. Gordon Liddy’s autobiography, he discusses how he, as a former FBI agent and then special assistant to the Secretary of Treasury, was asked to prepare a memo of law for the Nixon administration about how to fire Hoover.
The memo concluded that the President clearly had the authority to do that, but acknowledged that Hoover’s ability retaliate in the political realm by release of embarrassing information was “of unknown dimension” or some similar wording.
The anecdote concludes wryly that, like similar efforts before, it came to nothing and Hoover continued in his job.
The President absolutely has the power and the authority to fire the director of the FBI, at any time, and for any or no reason he chooses, because all of the authority of the executive branch is vested in the President.
Even with this fact, it’s also true that the President can be impeached for doing so, because an impeachable act is whatever the House of Representatives decides it is. It probably won’t happen in the current environment, with the House majority held by the same party as the President, but there’s nothing that says that it can’t.
Do you have anything other than your personal beliefs and opinions in support of this position?
In the Supreme Court case I mentioned earlier, Meyers v United States, the majority of the Court ruled that the President automatically has the power to fire someone whom the President has appointed. The power to fire is an implicit constitutional authority, and therefore there is no need for a statute to deal with the issue of dismissal. In fact, an attempt by Congress to limit the President’s authority to dismiss is unconstitutional, as a breach of the separation of powers.
[QUOTE= wiki article on Meyers]
Chief Justice William Howard Taft, writing for the Court, noted that the Constitution does mention the appointment of officials, but is silent on their dismissal. An examination of the notes of the Constitutional Convention, however, showed that this silence was intentional: the Convention did discuss the dismissal of executive-branch staff, and believed it was implicit in the Constitution that the President did hold the exclusive power to remove his staff, whose existence was an extension of the President’s own authority.
The Court therefore found that the statute was unconstitutional, for it violated the separation of powers between the executive and legislative branches. In reaching this decision, it also expressly found the Tenure of Office Act, which had imposed a similar requirement on other Presidential appointees and played a key role in the impeachment of President Andrew Johnson, to have been invalid; it had been repealed by Congress some years before this decision.
[/QUOTE]
If it were illegal for the president to fire Comey, don’t you think we’d be hearing that from every Democratic Senator currently serving in Congress (and half the ones that aren’t)?
There’s nothing in the statute pertaining to firing brown-eyed sex machines, either.
There is literally no legal debate about this. It is settled law that the President can fire political appointees, with the one caveat that there are a handful of statues that explicitly require the firing to be for cause.
The ten-year term is a limit, not a guarantee. It’s there to prevent another J. Edgar Hoover.
Can the President fire any Federal Employee? Like say a Park Ranger?