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Tuesday, May 16, 2017

Parlor Games and the FBI Directorship

Mitch McConnell (following the lead of Utah's Mike Lee) is urging President Trump to nominate Merrick Garland for FBI Director. McConnell insists that Garland would provide the nonpolitical professionalism needed for the position, plus he would get Democratic support, which would be a benefit for this appointment. And, of course, although McConnell does not say so, it also would give Trump a vacancy on the D.C. Circuit.

But Garrett Epps argues that it need not create any vacancy. Nothing in the Constitution or federal statutes prohibits a judicial officer from holding executive-branch office (I wrote in January wondering whether Garland would have had to resign his seat had Obama made a recess appointment). Epps cites numerous examples of simultaneous work, including Justice Jackson taking a one-year leave from SCOTUS to serve as Nuremberg prosecutor and Chief Justice Warren simultaneously chairing the commission investigating the Kennedy assassination. Epps argues that Garland could take a leave of absence from the D.C. Circuit to head the FBI for a few years (long enough to investigate Russia and anything else that comes down the Trumpian pike), then go back to the court after a few years in the Hoover Building* All it takes is the approval of the Chief Judge of the Circuit--and the Chief Judge of the Circuit is Merrick Garland.

[*] Although how much administrative trouble would it create when Garland came back to the D.C. Circuit. Would he have to recuse from nearly every federal criminal case in which FBI agents investigated?

Of course, McConnell is politically savvy and would ensure that Garland agreed to resign from the bench as a condition of confirmation. But Democrats might still score some political points, showing that McConnell's desire for bipartisanship is a ruse to create a judicial vacancy for a Republican president. If McConnell is  serious about wanting Democratic support and a non-partisan figure for the FBI, he should not insist on the new partisan gain of the judicial appointment

Ultimately, this is a parlor game (hence the title of the post) that makes for fun musings but will never come close to reality.

Posted by Howard Wasserman on May 16, 2017 at 02:23 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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