Judge Furman’s ‘Equilibrium’

Judge Jessie Furman’s ruling retroactively reinstating Maurene Comey as a federal prosecutor — with back pay, to boot — doubles as an opportunity for reversal by the Second United States Appeals Circuit. Ms. Comey’s suit surfaces the stretch of constitutional bedrock that concerns the president’s authority to fire so-called “inferior officers” like assistant United States attorneys. The government contends that the president possesses that power.Judge Furman, an appointee of President Obama, ruled that to concede to the president the power to fire Ms. Comey “would be to unsettle the very equilibrium established by this Nation’s constitutional system.” Ms. Comey, the daughter of the fired FBI director, James Comey, was handed her walking papers last year with notice only that she was fired “pursuant to Article II of the United States Constitution and the laws of the United States.”The Department of Justice contends that “Congress may not regulate, let alone limit, the removal of federal prosecutors because federal prosecutors exercise the President’s ‘conclusive and preclusive’ powers.” As our A.R. Hoffman reports, though, Judge Furman backs the ability of Congress to set down layers of red tape around the president’s prerogative to fire line prosecutors. Ms. Comey’s suit cites these statutes as ballast against her firing. The Constitution ordains that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” The parchment’s “inferior officers” are those who are supervised by officers who have achieved confirmation by the Senate. The Supreme Court calls those “principal officers,” and they would include United States attorneys. The Trump Administration points to the vesting of the “executive Power” in the President, who has the constitutional duty to “take Care that the Laws be faithfully executed.” As far back as 1886 in United States v. Perkins the Supreme Court held that “when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest.”Recently, though, the Supreme Court has warmed to expanding the ambit of the president’s firing power. In Trump v. Slaughter, from earlier this year, the Nine affirmed the president’s prerogative to fire the heads of most independent executive agencies at will, without needing to show “cause.” That overturned the 91 year-old precedent of Humphrey’s Executor v. United States, which had allowed Congress to insulate the heads of such agencies from removal.In Trump v. Cook, also from last year, the justices declined to extend the president’s ability to fire at will to the Federal Reserve. That ruling stemmed less from a desire to limit the Executive than the Fed’s unique status. While the Second Circuit would likely be unwilling to overrule Judge Furman on the basis of current law, the high court could eventually determine that the time is ripe to weigh in on the president’s power over prosecutors.A similar question was broached in Morrison v. Oson, when the Supreme Court upheld the constitutionality of the independent counsel. The lone dissenter was Justice Scalia, who found that holding at odds with the “equilibrium” — the same word used by Judge Furman — that the “Constitution sought to establish.” Though that case involved a different species of prosecutor, the threat to the executive anticipated the one presented here.

Judge Furman’s ‘Equilibrium’

Judge Furman’s ‘Equilibrium’

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