Jan. 31st, 2017

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In my previous post, I wrote comparing a technical point regarding the current constitutional crisis to the 1973 Saturday Night Massacre.

Since then I've learned that more general comparisons of the situation have been made.

I think the comparisons are actually limited.

In one sense, the President does have the unfettered authority to dispose of the services of any appointee officer in the executive branch. Congress tried to take that right away from Andrew Johnson, and he defied them; that's why he was impeached but (fortunately, given the circumstances) failed to be convicted.

And Yates directly defied a presidential order. If she thinks it's illegal, she has the moral right to do so, and he has the legal right to fire her. Or she could have resigned, as Richardson did back in 1973. Nothing was out of order about this on either side. The problems lie elsewhere than legally.

Even Richardson acknowledged that the Justice Department as a whole could not defy the president's order to fire Cox. He just refused to pull the trigger himself. But he knew he had to ensure that it was done, which is why Bork did it. What Bork's personal opinion on the matter was, I don't know. But he fired Cox by Richardson's request, and offered to then resign himself, which (as I explained) Richardson asked him not to do. (Nixon then offered to appoint Bork permanent Attorney General, to which Bork had the sense to reply, "That would not be appropriate." Instead, Nixon was politically forced into appointing William Saxbe, whose comment on the Massacre had been, "The President has taken leave of his senses.")

The difference between the situations is that Cox had been promised independence from interference by his superiors except for open malfeasance in office. Nothing had met that standard. Cox had merely rejected Nixon's proposed "Stennis solution" to the tapes subpoena, which was for an elderly, deaf senator to listen to the tapes and tell Cox what they said.

Yates, by contrast, was a regular functionary, not an independent investigating counsel.

Nixon was also under the delusion that, since Cox was the one pressing for the tapes, firing Cox would make the pressure go away and his problems would be solved. This was ludicrously wrong; it only increased the pressure. Trump, by contrast, though often delusional, has given no indication that he thought firing Yates would make the controversy go away, but it would enable him to enforce his order.

The problems lie elsewhere. First in that Yates has a very good case that the order is illegal, as several judges have confirmed. And second, Trump's legal right to fire her does not mean he was well-advised to do so, or excuse the crass manner in which it was done.

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