The Garland Gambit

By Garrett Epps

Slate columnist Dahlia Lithwick brilliantly shut down Sen. Mike Lee of Utah  for his “suggestion” that Democrats should back Judge Merrick Garland of the D.C. Circuit as James Comey’s replacement at the Federal Bureau of Investigation. Lee however, should be careful what he wishes for.

As Lithwick points out, the jest here is in mocking Democrats by suggesting Obama’s blocked Supreme Court nominee to run the bureau as someone they couldn’t possibly oppose. Unspoken but perspicuous is the wish to (at worst) score points off Democrats and (at best) free up a seat on the nation’s most important appeals court for a nominee from the Federalist Society weapons locker. “There is no cost to Lee in suggesting Garland for this job,” Lithwick notes. “It amounts, as Elizabeth Wydra of the Constitutional Accountability Center notes in an email, to little more than a headline that reads ‘Mike Lee wants to replace Merrick Garland with a conservative on the D.C. Circuit.’

Because the alternative was grading exams, however, I found myself wondering what would happen if the offer was made—and if Garland then politely said, “I accept, but first I must ask the chief judge of the Circuit for a multi-year leave of absence. Oh—wait! I AM the chief judge! Leave granted. Subpoenas go out Monday.” Garland would then move to the J. Edgar Hoover Building for a year or two (long enough, say, to complete some unfinished counterintelligence investigations about Russia) before returning to a seat that was never vacant.

Here’s where the sick jest turns on its maker. Lee poses as an authority on the Constitution; he must, then, know that the document doesn’t forbid a judge from accepting executive office—while continuing to serve on the bench.  Look at Article I § 6 cl. 2—the only explicit “separation of powers” provision in the Constitution: “no person holding any office under the United States, shall be a member of either house [of Congress] during his [or her] continuance in office.”

The words say that no executive or judicial official can serve in Congress without giving up his former job. They do not say that no judge can serve in executive office while remaining a judge.

And in fact, some of the greatest have done exactly that. Start with John Marshall, the “great chief justice.” Marshall ascended to the court on January 31, 1801; he continued to serve as secretary of state until after the inauguration of Thomas Jefferson on March 4. Another great justice, Robert Jackson, took leave from the court to serve as chief U.S. prosecutor at the Nuremberg War Crimes trials in 1945-46, then returned to his seat. Chief Justice Earl Warren agreed to serve as chair of The President’s Commission on the Assassination of President Kennedy from 1963-64, while remaining chief.

And it’s not just Supreme Court justices: Boeing General Counsel J. Michael Luttig, whom some conservatives have seriously proposed for the FBI job, was commissioned a judge in August 1991, but stayed at the Justice Department at least through October of that year to guide Clarence Thomas through his contentious Supreme Court confirmation. As for FBI director, 28 U.S.C. § 532 has no language forbidding a sitting judge from taking the position.

Of course, Garland would never try such a stunt, and if he did, the shrieks from the right would be piercing. Even if technically constitutional, they would say, surely such a move would violate the spirit of the Constitution, regardless of what is written on the page.

There’s something to this argument, but it would come with ill grace from those who last year proclaimed that the Senate had no duty to consider Garland’s nomination to the Supreme Court during the nine months it was pending. It’s not written that the Senate has to, the argument ran, so nonny-nonny-boo-boo.

This argument represents what I call the “minimal Constitution”—if the document doesn’t say “pinky swear no kidding” then it doesn’t forbid something. Minimalism has surfaced again in the wake of the firing of James Comey as FBI director.  The ever-provocative libertarian professor and blogger Josh Blackman, a leading advocate of the “no duty” position, this week left no room for doubt about Trump: “Under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”

Does the Constitution actually give the president the “absolute power to fire principal officers”? Where, exactly? In point of fact, the text is silent on the power to remove officers. That issue provoked the very first major constitutional dispute during the First Congress, with members—including some of the Framers—split among three positions. Some said the silence meant that executive officials, once confirmed, would serve for life; some said that they could not be removed without Senate consent; and some (including James Madison) said that the president had to have the entire removal power because otherwise the whole thing wouldn’t work. The issue resurfaced over and over—in fact, President Andrew Johnson was impeached because he removed the secretary of war in defiance of a statute. It was aired most recently in a 1988 case, Morrison v. Olson, about the constitutionality of the “independent counsel” statute.

So Trump did have the authority to fire Comey—under the unwritten Constitution, the same “document” that suggests to me that the Senate has the duty to consider presidential nominations. Of course, the unwritten Constitution also might also provide that a president really doesn’t have “absolute power” to fire a law enforcement official if his purpose is to block an investigation, and that obstructing justice may not be “entirely constitutional.”

“Absolute” is a bit elusive when we’re dealing with unwritten rules.

Minimal constitutionalists like to have it both ways. The Constitution limits Republican presidents only by what’s in the text—but when a Democratic Congress passes a national health-care program, the Constitution forbids an “individual mandate,” right there in Article Nowhere. Trump wasn’t forbidden to fire Comey, so it’s permitted; the Constitution doesn’t forbid the individual mandate, but it’s still forbidden.

Having enjoyed a bit of constitutional theory and history, though, the only real aim of the Garland trial balloon appears to be the pure joy of frat-boy bullying—disrespecting Judge Garland, mocking his supporters, reminding the “enemy” of an ignominious defeat. The country is in the midst of a grave crisis, and I fear that some charged with protecting its Constitution see only the chance to score partisan points.