Blanche Makes Case That Firing Maurene Comey Was Lawful Flex of Trump’s ‘Conclusive and Preclusive’ Power

That President Trump was operating well-within his prerogatives when in July he fired the former federal prosecutor Maurene Comey is the argument made in a brief filed this week by the Department of Justice.Ms. Comey, the daughter of the former FBI director James Comey, is contesting her firing. She claims her termination was unlawful because it was motivated by Mr. Trump’s animus toward her father. Mr. Comey faces two criminal charges for allegedly threatening the president’s life in an Instagram post.Ms. Comey’s prosecutorial resume includes a raft of awards and experience leading cases against Jeffrey Epstein, Ghislaine Maxwell, and Sean “Diddy” Combs. She won a preliminary victory last month when Judge Jesse Furman ruled that her wrongful termination suit could be heard in federal court rather than shunted off into an administrative proceeding. She alleges she was fired for her “perceived political affiliation and beliefs.”The acting attorney, Todd Blanche, contends in this most recent “memorandum of law” to Judge Furman, an appointee of President Obama, that Ms. Comey’s “removal at the direction of the Attorney General was a lawful exercise of the executive’s removal power.” More than that, Mr. Blanche insists that her firing was an instance of Mr. Trump acting in the “conclusive and preclusive” heartland of presidential prerogative. Mr. Blanche acknowledges that Ms. Comey steered “some of the office’s highest profile cases” and that she “exercised core executive functions, prosecuting and supervising hundreds of criminal cases on behalf of the United States.” Ms. Comey cites that track record to contend that her firing “runs afoul of constitutional separation of powers principles and violates the Administrative Procedure Act and her First and Fifth Amendment rights.”The crux of the debate is whether Ms. Comey was removable only “for cause” or could be removed simply by presidential fiat. Mr. Blanche insists that “she was removable at-will under Article II by the Attorney General.” That section of the Constitution commands the president to “take Care that the Laws be faithfully executed.” Appellate courts have acknowledged that the president fulfills this charge “personally and through officers whom he appoints.” It follows, Mr. Blanche reasons, that the president can hire and fire those officers.The Supreme Court has held that the president has the “power to remove — and thus supervise — those who wield executive power on his behalf.” If he lacked that authority, the Nine have reckoned, the “President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” The “conclusive and preclusive” language on which the DOJ relies was innovated in a landmark Supreme Court case from 1952, “Youngstown Sheet & Tube Co. v. Sawyer.” In that case the phrase was used to describe the president’s “exclusive power of removal in executive agencies.” That same language was adopted in 2024 by the Roberts Court in Trump v. United States, which determined that the president enjoys “absolute immunity” for actions within that “conclusive and preclusive” zone.Mr. Blanche argues that because assistant United States attorneys like Ms. Comey “exercise the President’s ‘conclusive and preclusive’ executive power when they engage in prosecutorial activities, Article II requires that they be removable at-will.” The Supreme Court, though, held in Morrison v. Olson — over an epochal dissent from Justice Antonin Scalia — that a restriction on a president’s power of removal passed constitutional muster.Morrison turned on the firing of a prosecutor under the now defunct Independent Counsel statute. In a subsequent case, Seila Law LLC v. Consumer Financial Protection Bureau, the justices wrote that Morrison marked “the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.” Mr. Blanche writes that the “United States preserves its position” that Morrison “was wrongly decided” and that it should “not be expanded to reach ordinary criminal prosecutors.”Ms. Comey counters that as an assistant United States attorney she did not wield executive power in the manner described by the DOJ, but rather more indirectly such that limiting her firing would not infringe on the authority of the president. She is seeking a writ of mandamus, meaning a court’s command to “return her to her office and not remove her from federal service without following lawful procedures.”During a hearing last month Judge Furman asked the DOJ if the president could decide to fire people in order to achieve an “all-white executive branch? Or all-black?” The government replied that such firings would be lawful “even if there were political motivations.” Ms. Comey’s lawyer accused the Trump administration of advancing a “novel and breathtaking theory about the scope of Article II power.”Ms. Comey was hired in the SDNY in 2014 i by an United States attorney, Preet Bharara, who was appointed to office by President Obama. Mr. Bharara was fired during Mr. Trump’s first term after refusing to submit his resignation to Attorney General Jeff Sessions, who requested that all 42 holdovers from the Obama administration depart. This was at various times the custom early in a new administration.

Blanche Makes Case That Firing Maurene Comey Was Lawful Flex of Trump’s ‘Conclusive and Preclusive’ Power

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