Here’s What Libertarian Legal Scholars Think About Comey’s Firing – Reason (blog)
PAT BENIC/UPI/NewscomPresident Donald Trump's decision to fire James Comey as head of the FBI on Tuesday set off a fire storm of political commentary, and with good reason. It's only the second time in the 108-year history of the FBI that the director has been fired by the president (the other was in 1993 when William Sessions was canned by President Bill Clinton over ethical issues), and, more importantly, the firing seemed to coincide with an escalation in the FBI's investigation of ties between the Trump campaign and the Russian government.
Trump apparently wants the Russia story to go away, but he did himself no favors by firing Comey in a way that invites criticism.
Setting aside the politics and optics of Trump's decision to dispose of Comeyboth of which look awful for Trump and have ramifications for Republicans in Congressthere are important legal and constitutional questions about Tuesday's firing.
Did Trump have the authority to fire Comey out of the blue like that? What happens next? Is this a constitutional crisis? I asked some of the top libertarian legal scholars in the country to weigh-in on those questions and offer their assessment of this whole, wild situation.
Here's what they told Reason on Wednesday (responses have been edited for clarity and length):
Ilya Shapiro, senior fellow on constitutional studies at the Cato Institute; editor-in-chief of the Cato Supreme Court Review:
"The legal/constitutional issues here are really easy: there are none. The president has undisputed removal power over the FBI director and he can now appoint a successor. (Until that successor is confirmed by the Senate, deputy FBI director Andrew McCabe is the acting director.)
"In other words, nothing that President Trump has done or is contemplating here is beyond his powers and there is no constitutional crisis. Having said that, the political and policy issues at playnot to mention the opticsare extremely serious.
"Congress may now set up its own investigation, or Deputy AG Rod Rosenstein (at Trump's direction) could appoint an independent prosecutorbut one who by law would also be removable by the presidentor all of these actors could do nothing, leaving the ultimate verdict to the voters in next year's midterm election."
Ilya Somin, professor of law at George Mason University, with a specialty in constitutional law:
"The President has the legal authority to fire an FBI director for almost any reason he wants. I don't think any serious legal commentator doubts that.
"What happens now is that Trump will nominate a replacement for Comey and the Senate will have to decide whether to confirm that person. That may turn out to be an extremely consequential decision."
Somin added that he did not want the first part of his answer to cause libertariansor anyone elseto conclude there is no reason for concern:
"There is a danger that Trump will appoint someone who will look the other way on the Russia investigation (which is looking into allegations of possibly very serious lawbreaking by Trump and his associates), or someone who will condone abuses of civil liberties of the sort we saw in the earlier history of the FBI. Trump's disdain for freedom of speech and his threats to use the power of government to go after his critics are far from reassuring on that score."
Josh Blackman, associate professor of law at the South Texas College of Law in Houston, with a specialty in constitutional law and the U.S. Supreme Court:
"The actions are perfectly constitutional. What happens next is up to the political process. Congress can investigate as it sees fit, and use whatever remedies, up to impeachment, it deems necessary."
On his personal blog, Blackman detailed the crucial difference between Trump's firing of Comey and the so-called "Saturday Night Massacre" in 1973, when President Richard Nixon pushed for the firing of a special prosecutor investigating the Watergate break-in:
"Further, for those drawing analogies to the Saturday Evening Massacre, recall that Nixon never actually fired anyone himself. Instead, he had to ask a subordinate to fire the special prosecutor for cause. Comey was fired by the President, directly, at will (though plenty of causes were given)."
David Bernstein, professor of law at George Mason University:
"I don't think there's any doubt that Trump has the constitutional and legal authority to fire Comey. As for what comes next, Trump will have to appoint a new FBI Director, who will need to be confirmed by the Senate. If the Senate does its job, it will ensure that the new director is not a Trump crony, and indeed the hearings for that new nominee could shed light on the background to Comey's firing.
"There is definitely no constitutional crisis here. Indeed, by a proper understanding of how the executive branch is supposed to work, it would be absurd to think the president is obligated to keep an official he doesn't want, as they are all essentially his employees/agents.
"I can't really speak to how this will play out politically, but in Nixon's case you had a special prosecutor who was getting close to revealing Watergate related secrets, and Nixon was trying to interfere with the investigation. Here, I don't think it's at all clear that the FBI, and any new FBI director, will be any less aggressive than Comey in pursuing the Russia investigation.
"Moreover, because such an individual will have been confirmed by a GOP Senate and not have Comey's baggage from the campaign, the results of that investigation will have additional credibility."
Todd Gaziano, senior fellow in constitutional law, Pacific Legal Foundation:
"Whether you think Comey's dismissal was justified or not, it is not a 'constitutional crisis' for the head of the FBI to be fired. Our republic and the constitutional separation of powers do not require an FBI director at all. The primary checks on executive error or abuse that the Framers created were political, electoral, and judicial checks that do not require a 'special prosecutor' or other 'independent' figures in the executive branch."
Tim Lynch, the Cato Institute's director of criminal justice projects, highlights Comey's history of conducting "trial by news conference," a tactic that he used against Hillary Clinton last year. Though the removal was ham-fisted, Lynch says, it was probably the right thing to do.
"We can do much better than James Comey. If Trump can repeat the careful process by which he selected Neil Gorsuch for the Supreme Court and secure a fairly swift confirmation vote, this matter will soon be forgotten. If the selection process is mishandled, the political storm clouds will hang over the White House for quite some time."
Go here to read the rest:
Here's What Libertarian Legal Scholars Think About Comey's Firing - Reason (blog)
- In Unanimous Resolution, Libertarian Party of Wisconsin Calls for the Abolition of ICE - urbanmilwaukee.com - January 26th, 2026 [January 26th, 2026]
- Libertarian Leanings: The rupture is a necessary part of the transition - havasunews.com - January 26th, 2026 [January 26th, 2026]
- Libertarian Party of Wisconsin: In unanimous resolution, Libertarian Party of Wisconsin calls for the abolition of ICE - wispolitics.com - January 24th, 2026 [January 24th, 2026]
- Libertarian Party of Wisconsin: Supports Sen. Rand Pauls bill to End Welfare for Non-Citizens Act, highlights need for private alternatives -... - January 24th, 2026 [January 24th, 2026]
- Libertarian Leanings: Recipe vs. Result: Does the U.S. government actually exist? - Havasu News - January 20th, 2026 [January 20th, 2026]
- Libertarian Cato Institute Condemns Trumps Insurrection Act In MN Threat - Patch - January 18th, 2026 [January 18th, 2026]
- Reading Against The State: A Libertarian Guide To Critical Discourse Analysis OpEd - Eurasia Review - January 18th, 2026 [January 18th, 2026]
- Can Libertarian Democracy Thrive in the Grip of Institutional Erosion and Politicization? - Halkweb - January 14th, 2026 [January 14th, 2026]
- Fact Check: Satirical Post Said 'Radical Libertarian NRA Members' Wielding AR-15 Rifles Were Facing Off With ICE Vehicles In Oregon -- Not Real News -... - January 11th, 2026 [January 11th, 2026]
- Tim Teagan Elevated to New Chair of Libertarian Party of Michigan - Libertarian Party of Michigan - December 16th, 2025 [December 16th, 2025]
- Belgian crypto billionaire wants to set up libertarian community in the Caribbean - belganewsagency.eu - December 16th, 2025 [December 16th, 2025]
- Second Vice-Chair to be Elected at Upcoming Convention - Libertarian Party of Michigan - December 16th, 2025 [December 16th, 2025]
- France taxes cigarettes but smokers do not drop, while libertarian Sweden has become a smokefree country: the different paths of the EU in its fight... - December 5th, 2025 [December 5th, 2025]
- Livestream: Behind the scenes with Reason's libertarian journalists - Reason Magazine - December 4th, 2025 [December 4th, 2025]
- A Legacy of Solutions The life and ideas of Leon Louw, the libertarian who helped shape SA's Constitution - Daily Maverick - December 4th, 2025 [December 4th, 2025]
- Livestream: Behind the Scenes With Reason's Libertarian Journalists - Yahoo - December 4th, 2025 [December 4th, 2025]
- COMMENTARY: Short journey from libertarian to autocrat - The Albertan - November 30th, 2025 [November 30th, 2025]
- In the Streets of Montreal: Quebecs Solidary Heart Beats with Libertarian Strength - Pressenza - International Press Agency - November 30th, 2025 [November 30th, 2025]
- Libertarian Party of Arkansas says it collected enough signatures for candidates to appear on 2026 ballot - kark.com - November 30th, 2025 [November 30th, 2025]
- Two 15-year-olds, backed by a NSW Libertarian MP, are challenging the Australian government's u16s social media ban in the High Court - Startup Daily - November 30th, 2025 [November 30th, 2025]
- Is The Washington Post Becoming Libertarian? - inkl - November 20th, 2025 [November 20th, 2025]
- Libertarian Leanings: Homebuyer horror: Attack of the 50-year mortgage! - Havasu News - November 18th, 2025 [November 18th, 2025]
- A Libertarian Goes to Washington to Regulate - Cato Institute - November 14th, 2025 [November 14th, 2025]
- Libertarian embarks on legal stoush, the ABC flogs unpaid internships, and The Age deletes a TikTok featuring - Crikey - November 14th, 2025 [November 14th, 2025]
- Liberty or Death the Life and Struggle of Libertarians in Russia - Libertarian Party - November 7th, 2025 [November 7th, 2025]
- The Irony of Mamdani - Libertarian Party - November 7th, 2025 [November 7th, 2025]
- Libertarian Backs Tucker Carlson In WAR Against The Neocon Right - TYT.com - November 7th, 2025 [November 7th, 2025]
- Individual Liberty In Libertarian And Conservative Philosophy OpEd - Eurasia Review - November 3rd, 2025 [November 3rd, 2025]
- Rep. Dave Min is my new libertarian hero for shutting down the government - Orange County Register - October 31st, 2025 [October 31st, 2025]
- Fantasy Of Clean Policy In Real India: Why The Libertarian Consensus Fails To Materialise - Swarajyamag - October 31st, 2025 [October 31st, 2025]
- Argentina's midterm election hands decisive win to Milei's libertarian overhaul - The Annapurna Express - October 31st, 2025 [October 31st, 2025]
- Argentina's midterm election hands landslide win to Milei's libertarian overhaul - CNBC - October 28th, 2025 [October 28th, 2025]
- Argentina's midterm election hands decisive win to Milei's libertarian overhaul - Reuters - October 28th, 2025 [October 28th, 2025]
- Libertarian Leanings: Instead of adding a ballroom to the White House, turn it into a museum - Havasu News - October 28th, 2025 [October 28th, 2025]
- Argentina's midterm election hands decisive win to Milei's libertarian overhaul - The Straits Times - October 28th, 2025 [October 28th, 2025]
- Argentinas midterm election hands decisive win to Mileis libertarian overhaul - sightmagazine.com.au - October 28th, 2025 [October 28th, 2025]
- Argentina heads to the polls in a test for Javier Milei's libertarian agenda - NPR - October 26th, 2025 [October 26th, 2025]
- From The New York Times Opinion Section Trump, with his thirst for money and power, has in one fell swoop both exposed and embraced the corruption at... - October 24th, 2025 [October 24th, 2025]
- A Libertarians Perspective, Transparency and Non-Partisan Control an Oped by Steven Edwards, Libertarian - 2nd Life Media Alamogordo Town News - October 23rd, 2025 [October 23rd, 2025]
- How the U.S. bailout could bring the end to Argentinas libertarian utopia - CryptoSlate - October 23rd, 2025 [October 23rd, 2025]
- Libertarian Candidates Test America's Growing Discontent With the Two-Party System - Reason Magazine - October 21st, 2025 [October 21st, 2025]
- Javier Milei's libertarian experiment is in jeopardy. Argentina's midterm elections will determine its fate. - Reason Magazine - October 19th, 2025 [October 19th, 2025]
- I listened to over 7 hours of Peter Thiel's leaked Antichrist lectures. They're surprisingly libertarian. - Reason Magazine - October 15th, 2025 [October 15th, 2025]
- Libertarian throws hat into the ring for Senator Ernsts seat - SiouxlandProud - October 9th, 2025 [October 9th, 2025]
- Libertarian throws hat into the ring for Senator Ernsts seat - Yahoo - October 9th, 2025 [October 9th, 2025]
- Argentinas libertarian President pays tribute to victims of Hamas Oct. 7 attack during a campaign-style event - Yahoo - October 9th, 2025 [October 9th, 2025]
- Rosser running for Libertarian Party in byelection - Northumberland Free Press - October 7th, 2025 [October 7th, 2025]
- Argentine lawmakers have overturned two vetoes by President Javier Milei, in a setback for the libertarian leader ahead of key legislative elections.... - October 4th, 2025 [October 4th, 2025]
- Wyoming Libertarian Party Says School Choice Doesn't Have To Be 'MAGA' - Cowboy State Daily - October 2nd, 2025 [October 2nd, 2025]
- This libertarian manifesto, loved by Peter Thiel, urges a cognitive elite to see selfishness as a virtue - The Conversation - September 30th, 2025 [September 30th, 2025]
- Laughing at a libertarian crypto dragon? That rules: Brennan Lee Mulligan on how Dungeons & Dragons took over the world | Role playing games - The... - September 30th, 2025 [September 30th, 2025]
- Trump Admin Responds to Mileis Failed Libertarian Policies With a US Taxpayer Bailout for Argentina - Common Dreams - September 25th, 2025 [September 25th, 2025]
- Civil libertarian voices concern over proposed use of police drones to catch Wagga criminals - Region Riverina - September 25th, 2025 [September 25th, 2025]
- Trumps new CDC chief: A Washington health insider with libertarian streak - The Indian Express - September 5th, 2025 [September 5th, 2025]
- Trumps new CDC chief: A Washington health insider with a libertarian streak - AP News - September 1st, 2025 [September 1st, 2025]
- Mileis libertarian dream and the risks of Karinas greed - Buenos Aires Times - September 1st, 2025 [September 1st, 2025]
- Three Michigan Libertarians Running for Local Positions in November - Libertarian Party of Michigan - September 1st, 2025 [September 1st, 2025]
- Trump's new CDC chief: A Washington health insider with a libertarian streak - yahoo.com - August 29th, 2025 [August 29th, 2025]
- Libertarian FCC Commissioner Was Believed to Be Uncomfortable with Paramount Deal: Exclusive - Yahoo Finance - August 7th, 2025 [August 7th, 2025]
- Libertarian FCC Commissioner Was Believed to Be Uncomfortable with Paramount Deal: Exclusive - yahoo.com - August 6th, 2025 [August 6th, 2025]
- Friday essay: libertarian tech titan Peter Thiel helped make JD Vance. The Republican kingmakers influence is growing - The Conversation - August 1st, 2025 [August 1st, 2025]
- Libertarian Party of Michigan Convention 2025: Smooth Leadership Transition Highlights Record Turnout - Libertarian Party of Michigan - July 28th, 2025 [July 28th, 2025]
- Presentation: A Libertarian Analysis of Law - Minding The Campus - July 27th, 2025 [July 27th, 2025]
- Peter Thiel, the libertarian billionaire waging war on government - Le Monde.fr - July 24th, 2025 [July 24th, 2025]
- Letter to the Editor: Former Libertarian Chair urges representatives to remember their oath - Brown County Democrat - July 10th, 2025 [July 10th, 2025]
- Musk Invited to Join the U.S. Libertarian Party - Binance - July 6th, 2025 [July 6th, 2025]
- LETTER TO THE EDITOR: Former Libertarian Party chair speaks on One Big, Beautiful Bill - Purdue Exponent - July 6th, 2025 [July 6th, 2025]
- Libertarian Party Invites Elon Musk to Join Them in the Realm of Political Loserdom - Gizmodo - July 4th, 2025 [July 4th, 2025]
- No Kings: Why California needs the Libertarian message more than ever - Orange County Register - July 4th, 2025 [July 4th, 2025]
- Libertarian Party courts Elon Musk amid third-party buzz: Join us, dont reinvent the wheel - Latest news from Azerbaijan - July 4th, 2025 [July 4th, 2025]
- Thomas Massie: The Maverick Congressman Shaping Libertarian Investing Ideas - Vocal - July 4th, 2025 [July 4th, 2025]
- Libertarian Party pitches Musk an alternative to creating new party: Join forces - Washington Examiner - July 4th, 2025 [July 4th, 2025]
- Elon Musk Receives Invitation To Join Libertarian Party: 'Making A New Third Party Would Be A Mistake' - Benzinga - July 4th, 2025 [July 4th, 2025]
- None is Worse Than Less: Libertarian Monetarism, Ample Reserves, and the Crypto Mirage - International Policy Digest - July 2nd, 2025 [July 2nd, 2025]
- Chip Roy Goes Nuclear on Libertarian Witness Advocating For Due Process: Killing Americans! - Mediaite - June 26th, 2025 [June 26th, 2025]
- Review: What the Hell Is a 'Libertarian Authoritarian'? - Reason Magazine - June 22nd, 2025 [June 22nd, 2025]
- Conservative and Libertarian Public Interest Group Letter Opposing "Big Beautiful Bill" Provision that Undermines Access to Justice - Reason... - June 22nd, 2025 [June 22nd, 2025]
- The paradise island where millionaires go to avoid death (and taxes): Isle for the libertarian super-rich attracts many more like Bryan Johnson - the... - June 22nd, 2025 [June 22nd, 2025]
- 'I'm More Libertarian Than You!' Rand Paul Opens Up About His Conversations With Trump, Iran War - The Daily Signal - June 20th, 2025 [June 20th, 2025]
- Heres Why ELON MUSK Should JOIN The Libertarian Party! Robby Soave | RISING - The Hill - June 10th, 2025 [June 10th, 2025]