Could she fire him?

By Saikrishna Prakash and Aditya Bamzai
IS THE FBI director independent of the White House? Only in a manner of speaking.
Successful directors are not tools of the president and they understand that the FBI functions best when it maintains its distance from politics. Wise presidents understand the awful optics of meddling in law enforcement decisions and thus make no move to politicize the FBI. In the end, though, the FBI director serves at the president’s pleasure.
Should Hillary Clinton be elected next week, she could in fact fire FBI Director James B. Comey as soon as she takes office in January. Many lawyers have excoriated Comey for going public on a potential new angle in the Clinton email investigation, especially within days of the election. Others have defended him. Comey’s move, said Clinton, is “not just strange, it’s unprecedented and it’s deeply troubling because voters deserve to get full and complete facts.”
But what Comey did isn’t really what’s at issue. The Constitution says Comey, like all FBI directors, is something like an “at will” employee.
Yes, there is a federal statute that provides that the director has a 10-year term, but that provision does not constrain the president’s firing power, it merely limits his or her ability to keep a valued or friendly director in office after the expiration of the term. (No director can serve more than 10 years without some further legal action by the president, the Senate or Congress.)
That’s how the provision’s chief congressional sponsor, Sen. Robert Byrd (D-W.Va.), understood the statute when the 10-year term was enacted in 1976. He observed that it imposed “no limitation on the constitutional power of the president,” who can remove the FBI director “at any time, and for any reason that the president sees fit.” And it’s how the United States Court of Appeals for the District of Columbia Circuit recently interpreted the statute. The court said (albeit in passing in a decision on another issue) that, under Supreme Court precedent “such tenure provisions do not prevent the president from removing at will a director at any time during the director’s tenure.”
Byrd’s understanding, and the Court of Appeals’, is based on the constitutional principle, derived from Article II, Section 1, that the president supervises the executive branch of the government. During a debate in the 1st Congress, James Madison expressed the view that the Constitution mandated that “the first Magistrate should be responsible for the Executive department ” and, by implication, that it limits Congress’s authority “to diminish or modify” such authority. Later Supreme Court cases have upheld some statutes that constrain the president’s firing authority (such statutes typically require “cause” for removal), but absent such constraints, officers in the executive branch serves at the president’s pleasure.
The president’s power in this regard is not a mere legal technicality but rather a central part of our constitutional framework. Every four years, the nation elects a chief executive, based on his or her platform, which may include promises about how the executive branch will direct its limited law enforcement resources. Those elections and promises would be a meaningless charade if an incoming president could not remove subordinates who refused to carry out the platform chosen by the people.
All that said, whatever legal discretion the president enjoys, a prudent president should remove an FBI director only for legitimate reasons. The backlash for politicizing law enforcement, or even appearing to politicize it, can be devastating. Witness the outcry and the criminal investigation that arose when the George W. Bush administration removed sitting U.S. attorneys, allegedly because they pursued or failed to pursue prosecutions that met the president’s political aims. President Nixon’s “Saturday Night Massacre,” in which he dismissed Watergate special prosecutor Archibald Cox, provoked similar outrage. A controversial removal of an FBI director now would prompt howls and feverish conspiracy theories.
Has Comey made decisions that warrant his dismissal? It is not for us to say, especially as neither we nor the rest of the public have all the facts. Still, based on the statements of Clinton and her supporters, it would appear that, should she be elected, his dismissal could be imminent.
Yet the White House press secretary seemed to indicate that President Obama didn’t agree: “The president is completely confident that Director Comey has not taken any steps to try to intentionally influence the outcome of the election or to advantage one political party,” Josh Earnest said Monday.
If a newly installed President Clinton does remove Comey, she would be repeating history. About six months after his inauguration, President Bill Clinton concluded that then-FBI Director William S. Sessions had committed a number of ethical violations. The outgoing attorney general under the George H.W. Bush administration had accused Sessions of such lapses as taking personal trips on the FBI plane and using government money to build a fence at his house. Bill Clinton judged that Sessions could not effectively lead the bureau.
Although the administration pushed Sessions to resign, when he didn’t and was removed, there was no significant outcry about the politicization of the FBI, which reflected an acknowledgment that the law gives the president removal authority over subordinate executive branch officers. It is a central, not incidental, constitutional principle.
SAIKRISHNA PRAKASH is a professor of law and ADITYA
BAMZAI is an associate professor of law at the University of Virginia.

Your assumption that I am uneducated is exactly why people like you want a known crook to gain the White House which she and her husband stole from while they were there the first time. She or her husband by virtue of their position knew it was illegal or they should have known it was a theft. How many other people that take things from a residence get the option of returning some of the items and get off totally free? Unfortunately, that is just a very tiny example of her mistakes one of which directly cost the lives of four Americans that were serving their country. Read my other post about her and for 1sure ignore everything she has done because she is a woman or because she is a Democrat. That for sure makes her the ideal choice.

For your edification, Currahee:

Frank I. Luntz (born February 23, 1962) is an American political consultant, pollster, and "public opinion guru" best known for developing talking points and other messaging for various Republican causes. His work has included assistance with messaging for Newt Gingrich's Contract with America, promotion of the terms death tax instead of estate tax and climate change instead of global warming, and public relations support for pro-Israel policies in the Israeli-Palestinian conflict. Luntz's most recent work has been with the Fox News Channel as a frequent commentator and analyst, as well as running focus groups during and after presidential debates on CBSN. Luntz describes his specialty as “testing language and finding words that will help his clients sell their product or turn public opinion on an issue or a candidate.” He is also an author of business books dealing with communication strategies and public opinion. Luntz's current company, Luntz Global, LLC, specializes in message creation and image management for commercial and political clients.
He is perhaps best known for his focus group appearances on Sean Hannity's FOX show.