Bad facts, it is said, make bad law. And these are ugly facts.
We’ve posted my piece on the latest absurdity in President Trump’s quest to prosecute former FBI Director James Comey — or to at least arrest him, since Attorney General Todd Blanche, though he’s trying very hard to satisfy the boss, can’t seem to find a charge that will stick.
Alas, this new misadventure — the attempt, through an improper criminal information, to allege a felony that under the Constitution may only be charged by a grand jury indictment and is, in any event, time-barred — is not the lone development in the president’s anti-Comey lawfare. On Monday (the same day the new attempt to prosecute Comey became public), a federal judge in Manhattan ruled that the Trump Justice Department had illegally fired Comey’s daughter.
Maurene Comey was a ten-year veteran prosecutor in the Southern District of New York (SDNY). She was fired on July 16, 2025, for no reason other than that she is Jim Comey’s daughter. The DOJ did not even pretend to have some conduct-related cause: Ms. Comey was among the nation’s most well regarded assistant U.S. attorneys (AUSAs), had prosecuted some of the SDNY’s most significant cases (e.g., those against Jeffrey Epstein–Ghislane Maxwell and Sean “Puffy” Combs), was awarded one of the Justice Department’s highest honors for her performance in the Maxwell case, and had been consistently top-rated in performance evaluations and promoted to supervise other prosecutors during her SDNY tenure.
Not surprisingly under the circumstances, the government was dodgy about who made the decision to sack Comey. She was informed about her termination in an email from the DOJ’s Justice Management Division. The email included a curt memorandum from Francey Hakes, Director of the DOJ’s Executive Office of U.S. Attorneys, relating that Comey was removed “pursuant to Article II of the United States Constitution and the laws of the United States.” Article II makes the president the chief executive and vests all executive power in him.
Comey filed a civil lawsuit to contest her firing. In the course of the proceedings, the Justice Department acknowledged that the decision to fire her was made by then–Attorney General Pamela Bondi. This effort to mollify the president obviously proved unsuccessful: Less than two months later, Trump chastised Bondi in a social media post for failing to prosecute James Comey (among other Trump political enemies). Trump fired Bondi in April 2026. Blanche, her replacement, ratified Maurene Comey’s firing when he was acting AG. (He has since been confirmed by the Senate, whose Republican majority seemed singularly uninterested in Comey’s patently vindictive termination.)
There is no doubt that Comey is covered by the 1978 Civil Service Reform Act (CSRA) and the Civil Service Due Process Act. These employment protections for government employees require good cause for termination as well as notice and an opportunity to be heard. Nevertheless, the Justice Department takes the position that, under the Constitution’s separation-of-powers doctrine, the president must be able to fire at will any official who wields executive power. In other words, the DOJ says Congress may not place any conditions on the president’s ability to fire officers or employee in any executive agency.
That has never been the law. As explained in a 55-page opinion by Judge Jesse Furman, an Obama appointee to the SDNY bench, the Constitution’s appointments clause distinguishes between “officers” and “inferior officers” of the United States. The former (often referred to as “superior” or “principal” officers), must be nominated by the president and confirmed by the Senate, and they serve at the president’s pleasure. The latter, by contrast, may be appointed pursuant to laws enacted by Congress, and the courts have long held that Congress may impose limitations — such as good cause shown — on the president’s authority to remove them. Congress has prescribed such limitations in the CSRA and the related later legislation; the Justice Department acknowledges that Comey’s firing did not comply with these laws.
As Judge Furman observed, even the late, great Justice Antonin Scalia, in his famous lone dissent in Morrison v. Olson (1988), did not contend otherwise. Morrison dealt with the president’s authority to fire an independent counsel, which the Court’s majority held he could not do because the independent counsel was an inferior officer. Justice Scalia’s position in dissent was that the independent counsel’s authority was sufficiently broad and unsupervised that he had to be deemed an officer who was removable at will, lest the president lose control over executive power that the Constitution vests in him as chief executive. Furman quotes Scalia at length:
The president must have control over all exercises of the executive power. That requires that he have plenary power to remove principal officers such as the independent counsel, but it does not require that he have plenary power to remove inferior officers. Since the latter are, as I have described, subordinate to, i.e., subject to the supervision of, principal officers who (being removable at will) have the President’s complete confidence, it is enough — at least if they have been appointed by the President or a principal officer — that they be removable for cause, which would include, of course, the failure to accept supervision.
AUSAs exercise awesome powers; that said, they are subordinates in the DOJ chain of command, subject to multiple levels of supervision. At best, they are inferior officers — indeed, they are immediately subordinate to a district U.S. attorney, who is an inferior officer. But their authority comes from the attorney general, a principal officer who has the president’s confidence and can terminate the AUSA if there are reasonable grounds.
The DOJ seems to believe — or is at least willing to advocate the position taken by the president — that the recent Supreme Court cases expanding the chief executive’s control over agencies and federal officers who wield executive power (see, e.g., last term’s Trump v. Slaughter decision) compel the conclusion that the president must be able to remove at will anyone who wields any executive power. I imagine the DOJ will appeal Judge Furman’s ruling, but I doubt that the administration will get a different result in the higher courts.
Bad facts, it is said, make bad law, and these are ugly facts.