Donald Trump and the Tenure of Office Act

The Tenure of Office Act of 1867 prohibited the President from firing cabinet officers without Senate approval. President Andrew Johnson took strong exception to the law and deliberately broke it. He fired Secretary of War Edwin Stanton. 
Mr. Johnson was impeached by the House, but he was not removed by the Senate. He was acquitted by only one vote. However his decision was validated by the US Supreme Court decades after his own death.   

In 1926, Chief Justice (and former President) William Howard Taft, writing for the majority in Myers v. United States, opined that the Tenure of Service Act was unconstitutional because a President has the unmitigated right to fire any subordinate who is confirmed by the Senate. 

Today, President Trump is being investigated for obstruction of justice because he fired the FBI director. Special Counsel Bob Mueller is checking to see if the President violated 18 USC 1505.  

The obstruction of justice statute prohibits anyone from corruptly endeavoring to influence “the due and proper administration” of the law under which any proceeding before an agency like the FBI is being had.  

In the President’s case, Mr. Mueller is checking to see if he fired former FBI Director Comey because the latter would not drop the investigation of General Mike Flynn. The theory is that if Mr. Trump had a corrupt motive for firing Comey, then he would have obstructed justice. 

The problem with this theory is that, as applied to the President, Section 1505 cannot limit his power to fire subordinates; otherwise the statute would be no different than the unconstitutional Tenure of Office Act.   

To say that Mr. Trump’s firing of Mr. Comey was obstruction of justice is to imply that sometimes, at least, the President must get Congressional permission before firing an appointed official. That runs afoul of the holding in Myers.   

Now does this mean that Trump cannot or will not be impeached? No. If Congress can impeach (and almost remove) Andrew Johnson for breaking an unconstitutional law, it can do the same for Donald Trump. But to say that Mr. Trump committed a criminal offense by firing Mr. Comey is absurd. 

Pursuant to the separation of powers doctrine, Congress cannot limit the President’s ability to fire appointed officials. Otherwise Congress would be assuming executive authority in contravention of Article II, Section 1 of the Constitution.    

Unfortunately in their haste to burn the President to a stake, liberal and progressive talking heads overlook the sublime truth that the Constitution says what it means and means what it says, to-wit:

“The executive Power shall be vested in a President of the United States of America.”


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