Matt Yglesias has a typical response to the 20-page legal document President Trump’s former legal team sent to Robert Mueller on January 29, 2018. Which is to say that his response is a reaction primarily to the more extreme assertions of executive power rather than to the more detailed legal defense of Trump’s actions.
This is a particularly extreme version of the “unitary executive” doctrine that conservative legal scholars sometimes appeal to (especially when there’s a Republican president), drawing on the notion that the executive branch of government — including the federal police agencies and federal prosecutors — are a single entity personified by the president.
But to push that logic into this terrain would not only give the president carte blanche to persecute his enemies but essentially vitiate the idea that there are any enforceable laws at all.
It’s not that Yglesias is wrong in saying this. Trump’s lawyers asserted that Trump is incapable of obstructing justice by virtue of the fact that he has the right to obstruct justice. He can force the FBI to investigate anyone for any purpose, no matter how corrupt, and he can force the Justice Department to drop the prosecution of anyone, for any reason. He can pardon himself or anyone who might provide evidence against him. Essentially, the president can do anything with an agency of the executive branch of government because he’s the head of the executive branch.
These might be outrageous assertions but they’re essentially correct. If the president were to come out tomorrow and preemptively pardon himself, then he would have pardoned himself. No one could say that he hadn’t done it. And if he told the Justice Department not to pursue any more prosecutions in the case or to appeal his pardon of himself, and he fired anyone who wasn’t willing to follow those instructions, no one could say that he hadn’t killed the investigation.
There are elements of this kind of extreme obstruction that might be subject to some kind of legal intervention, by Congress or perhaps any citizens with standing, but standing on their own, these actions would be faits accomplis. The president can do them because he can do them, and once they’re done, they’re done. If they’re illegal in spirit and corrupt in every meaningful sense, that doesn’t change a thing. The remedy for as long as the president remains president, is impeachment.
If we ask if these actions are or should be impeachable offenses, that’s one kind of debate. But if we ask if they’re illegal, that’s another kind of debate. I keep seeing variations on the argument that the Founding Fathers never could have intended that this or that action by a president could be legal. But what they intended and what they produced as a system of constitutional government are not necessarily the same things. They gave the president unlimited pardon power. They never said it was impossible for a president to abuse that power, but they didn’t limit in any legal sense.
One way of looking at this is that when the president does something that would be illegal if anyone else had done it, it’s a potentially impeachable act. But when we say or insist that the president is not above the law, that’s more aspirational than true. When the courts told President Nixon that he had to turn over the tapes and told President Clinton that he had to submit to a deposition in a civil suit, they complied because failing to comply would have increased their chances of being impeached by the House and convicted by the Senate. If they had refused to comply with the courts’ rulings, there would have been no other remedy.
The assertions of executive power made by Trump’s former lawyers are outrageous, but not because they’re strictly untrue. While some of their brief contains flawed legal analysis, in its broad outlines it is simply a maximalist approach that concedes absolutely nothing in advance. His lawyers reserved the right to make the broadest possible claims of executive power, and I don’t see this as all that unusual.
I don’t think they would win most of these points in court using these arguments, but part of their argument is that they don’t need to comply with the courts in any meaningful sense. If they don’t like being compelled to provide testimony, they can just shut the whole investigation down. And I don’t see any way that we cannot concede the point. There might be steps they’d have to go through to shut the investigation down, but they could go through those steps.
And where would that leave us?
It would leave us with a debate about remedies and the only remedy is removal from office. In that case, a failure to act would “vitiate the idea that there are any enforceable laws at all.”
But that’s a different terrain than the one on which Yglesias placed his flag. On the real terrain, there are no enforceable laws for the president. Instead, there is a political debate about what is acceptable. Impeachment is not, strictly speaking, an enforcement of the law. It could be, however, an enforcement of certain standards of conduct. One standard could be, and should be, that no president is above the law. But we know even that is not true. Impeachment is prescribed for high crimes and misdemeanors, which basically carves out an area for allowable low crimes. And even within that definition, weak as it is, the determination of what is serious enough to merit removal and what is not has no binding or strictly correct definition.
What Congress decides to do, or not to do, defines what is permissible and creates non-binding precedents for future congresses. If they say that the president is above the law in a particular case, that makes it more likely that a president can abuse their power in the future.
It would indeed by outrageous if the courts agreed with Trump’s legal arguments, but that’s not likely. What is a real possibility is that Congress accepts them and fails to act if Trump ignores the rulings of the courts or otherwise moves to corruptly impede the investigation.
It’s true that the system of government described in the memo would clearly not be what the founding fathers intended, and it would be unconstitutional, given that the President is instructed in the constitution to ‘faithfully execute the laws’. However, what’s lacking, as you point out, is a description of how the other branches of government can effectively check a President who believes such an exercise of the office is permitted. Impeachment may be the remedy, but it’s not an adequate remedy. On the question of obstruction, we are being set up to argue whether an exercise of executive decisions is unconstitutional or unlawful when the decisions are within the purview of unitary executive discretion. The current GOP will allow this to stand, and the Presidency will be a new kind of office.
What is the actual mechanism of enforcement if the ‘independence’ of the Justice Department is only an illusion, a ‘norm’. Impeachment is not an adequate remedy for a President who corrupts the role of the prosecutor, and there may be that there are real constitutional problems with the idea of trying to fix the practical mechanism by statute. However, because the judicial branch oversees the integrity of the courts, and prosecutorial behavior is a matter of appeal, I would think that the Supreme Court will have the final say and can impose a remedy. I believe that the norm of adherence to Supreme Court decisions is strong enough that no President could simply refuse to comply. It seems like there needs to be specific details developed to formalize a remedy from the Court, in the practical day-to-day sense, because norms just aren’t going to cut it anymore on the issue of the independence of the prosecutorial function. On the other hand, to abandon the spirit of the law because it no longer has any power, and ask for protection from tyranny with just the letter, that’s a kind of decay. That won’t end well either.
“John Marshall has made his decision; now let him enforce it.” Attributed to President Andrew Jackson in response to the Supreme Court’s decision in worcester v. Georgia.
The Supreme Court blinked.
https://en.wikipedia.org/wiki/Worcester_v._Georgia
Maybe this is optimistic of me, but, well, that was a long friggin time ago.
Supreme Court opinions have been controlling for so long that to openly disregard the Supreme Court, I think, would be a bridge too far.
President can be impeached for “… treason, bribery and other high crimes and misdemeanors … “
Don’t know how much weight original intent should carry, but back then “high crimes” were crimes of state – IOW abuse of power or improper official actions.
I think it’s likely that solid evidence of massive bribery will surface – that is unambiguously impeachable per the Constitution.
Or not impeachable, if Congress doesn’t feel like impeaching.
There is no law or correct answer, only what Congress does.
Congress has become the nobles of the new kingly world you described.
I wouldn’t prejudge what Congress is willing to tolerate.
Umm, with this congress I would beg to differ.
If Congress does not feel like impeaching can not they then be queried as to why they do not feel like impeaching? It strikes me that the real ultimate authority here is the voters.
That’s the theory, and as long as we can vote people out of office, it works beautifully. However, most of the problem members of Congress are drawn into very safe districts and all incumbents have inherent advantages. On the other hand, in this case no amount of oligarch funding will convince 98% of the media that it’s okay for the president to, e.g., ignore the Supreme Court, pardon himself, order DOJ to look the other way, etc.
I don’t really think the U.S. Senate would be okay with these things either, but a Republican House might let it go.
Granting himself a pardon strikes me as an effort to nullify the impeachment process and hence, is not possible. Same for ignoring a subpoena or even shutting down the investigation or ignoring obstruction charges. But we may soon find out from the supremes. But the key as you note is having opposition in Congress.
I think it’s likely that solid evidence of massive bribery will surface …
According to what we normally think of is bribery or what John Roberts and his four fellow justices say is bribery?
If Trump shuts down the investigation or uses the pardon power to protect himself or his accomplices, I think that’s a pretty clear abuse of power. Not a a R congress would necessarily see it that way.
The limit on the pardon power is it can’t be used to interfere with impeachments. That’s it. I appreciate this post quite a bit because too many on the left are stuck on norms.
No, too many are stuck on democracy thinking we left the kingly rules behind several hundred years go. Until now it never seemed to matter but now our betters told us we were wrong all along. By your leave my grace now has more meaning.
I think you are somewhat missing the point. We have a remedy. It’s in the Constitution.
It’s only if we fail to exercise that remedy that we’re back to despotism.
Indeed. It appears it all comes down to congress. The constitution be damned. The chances of congress exercising their remedy is like the Nobles of old or maybe the high priests on the court. And we know what they both are likely to do. It is depressing. So I want Mueller to challenge it by issuing a subpoena or indictment. Rudy is using the public to spread his shit. We need the same.
Sounds like divine right has made it into the constitution. Time for a revolution.
Sometimes it’s valuable to go ahead and slip on that slippery slope or just fall off that cliff.
Taken in an extreme view we could easily come up with enough illegal acts on the emoluments issue alone…so do we get to the point where every morning during his Executive time Trump pulls out his pen and signs the pardon du jour that Kelly hands him for himself?
And do we get to the point where he pardons himself for pardoning himself?
Malcolm Gladwell did a piece awhile back where he discussed (in the context of gun control) the idea of peoples’ tipping points. One thing I do know, we have to have an intact and functioning judicial system in place in order to respond when the tipping point is reached.
“…we have to have an intact and functioning judicial system in place in order to respond when the tipping point is reached.”
And this administration and its lickspittle Senate are working furiously to pack the federal judiciary with young fanatical ideologues.
. . . whatever a simple majority of the House of Representatives agrees is impeachable, just as a practical matter.
That quibble aside, this gets right down to it, imo:
So my quibble is that it’s not doing “something that would be illegal if anyone else had done it”, per se, that is “potentially impeachable” (anything and everything is “potentially impeachable, see first sentence above). It’s that this, combined with “no other remedy”, define a good practical standard in which impeachment becomes politically/practically feasible and more likely (though all bets are off with the current, traitorous makeup of the Banana Republican Party Caucus’s majorities in Congress).
The undermining of norms is in fact, how democracies die
If you haven’t heard the podcast Ezra Klein did with the two authors, Steven Levitsky and Daniel Ziblatt, I urge you to give it a listen. It’s an interesting interview and a good summary of their book. The two authors end up being way more optimistic about our future than I am.
As their power becomes increasingly dependent on the influence of money and their electoral victories are likewise dependent on gerrymandered districts and suppressing the votes of poor and minority voters, the Republican party has embarked on a steady erosion of norms in advance of partisan advantage. Trump isn’t happening in a vacuum, he is in fact just a logical projection of the trend towards corrupt, partisan, and autocratic government that has defined the Republican party. Mitch McConnell stealing a supreme court seat, freezing Obama’s judicial appointments, and then stuffing the courts with young loyal Republican ideologues is a huge norm breaker. Bush V. Gore is another one. These didn’t happen out of the blue, they happened to advanced the partisan future of the Republican party.
The fundamental issue is that money has been seeking to exploit our archaic political system, with much success I should add, for a long time and Donald Trump, being the master of corruption that he is, was able to jump to the front of the line.
On T.V. right now, all of the pundits are saying how of course the Supreme Court will reject Trumps broad assertion of executive authority. I wish I could be so optimistic. We have as partisan and corrupt a court majority as we have had in a long time. I wouldn’t be surprised at all if they dropped another Bush V Gore opinion- good for this one decision only, that allows Trump to skate scot-free one way or another because the future of their party, and of don’t forget their fat bank accounts, depends on it.
Not often I agree with you these days, Booman, but I think your argument here is essentially correct. Obama had to be squeaky clean to avoid being impeached by a hostile Republican congress. Trump can get away with almost anything – unless we get to the point were even republicans in safe seats start getting worried that everything is getting out of hand and their futures are in doubt.
So the only real remedy for a President doing anything illegal is if congress decides he has become too great a liability. And the only real remedy for Congress being over-eager to impeach a political opponent or negligent in not impeaching an ally is the verdict of the people at the next election. Everything else is detail and process.
Personally I think a President who starts a war that kills many thousands just to improve his re-election prospects should be tried as a war criminal in The Hague. But I think we will have to wait for the fall of the American Empire before that starts to happen. In the meantime we will just have to wait and watch as standards fall ever further. Caligula is reputed to have appointed his horse as a Consul. Are we there yet?
“NEEEIGGGHHHHH!!!”
Nevertheless, the horseshit is certainly beginning to pile up!!!
On both sides of the political stable.
On all three sides if you include the Trump Gang.
Who will be our Heracles?
Who will clean out the Augean stable of Washingtoon, DC!!!???
We await his (or her) arrival with bated breath.
Why?
Because we can’t stand the stink, that’s why.
AG
Great! Just what we need — more asinine, childish drivel from Arthur Gilroy. As always, I don’t think I’ve ever seen such juvenile observations presented so condescendingly.
At this point, I believe making President Stupid a one term, stolen election, mistake would be a much more powerful move by the Left than impeachment, must less removal.
First, liberals/progressives/etc. need to become MUCH stronger politically if we want anything different than what we’ve gone or where we’re headed. So no matter what 2018 turns out to be, we have to do it double in 2020 and beyond.
Second, the media let Republican voters off the hook for W and then let them put on funny hats and hold dark money funded Tea Party(TM) rallies where they kept saying stupid and racist shit only to have the news report be “all formally apolitical Americans just too concerned about deficits!”
The media will not be able to do that if Republicans fail re-elect Der Leader…though, like NPR in 2012, they’ll spend days discussion how <wink> “unusual” <wink> turn out was…and they need to lose more ground everywhere else.
This Trump Presidency has shown that certain flaws in the Constitution can be fatal and need to be rectified. Specifically:
4. Federal Congressional districts need to be drawn by independent commissions and approved by judges. Of course the curse of hyper-partisanship was unknown to the Framers.
5.Somehow nullify the SCOTUS decision that money is speech and make it flat out unconstitutional.
Well you know
We all wanna change your head”
. . . would be the accurate Beatles lyrics (presuming that’s what you were going for, as I guessed?), plus, I think, work better for your point? Imo, anyway. YMMV.
I said I instead of you because I am the one making the statement. I left out the second part because it doesn’t apply.
. . . DID vary.
OK, fair enough.
Practically, pragmatically, at this moment in time, Booman is correct in the sense that a Congress unwilling to hold the president unaccountable leaves no alternate remedy to lawfully take down a presidency. But I also think it a narrow and cynical view because it presumes there isn’t a breaking point.
If the president is voted out of office, he’s subject to criminal prosecution. If his party is voted out of the majority, they can no longer protect him. If Republicans work together to destroy democracy, there is a point where people will rise up and demand reform. At least I hope so.
Actually, the president could issue a broad pardon- which unfortunately we already have precedent for with Ford’s pardon of Nixon, for all crimes committed. And, in theory, he could maybe even pardon a complete class of people… let’s just say Republican office holders, for all federal crimes they ever committed, if he wanted to.
I don’t see how the senators or reps. puts up with the donald for 4 years. He does not keep his word and constantly contradicts himself if he has to string 4 sentences together. They have been eliminated from global affairs. In 4 years a senator will be reduced to a nobody with influence limited to their state.
LOL! Trump gave them tax cuts and Gorsuch. The rest is just noise. Look at Mini-me. Or look at Chuck Schumer(!!) and the Jerusalem embassy fiasco.
Promoting his new book on NPR today, Bill Clinton called for paper ballots. I’m glad someone is saying it.
I am physically upset by this Booman post, because I think it’s spot-on. The corruption may well kill this country. Today on Fox they are boosting the Prez-above-the-law crap.
The corruption didn’t start with Trump though. John Roberts was a C- Augustus appointee, remember. And there was Ray-gun, Iran Contra and all that.
Frankly, it’s not just Republicans who will refuse to Impeach this bastard crook. Democrats won’t do it, either.
Don’t count on Congress – even should we get a D majority in November (fingers crossed) – I count on them to DO NOTHING.
Our only hope is to vote that crook out in 2020.
GOTV.
This whole presidential accountability thing really gets under my skin. Now Rudy is saying Trump could shoot Comey and still not be indicted for it. Is that right? Then we truly have a king for president.
The Rodney King riots were, essentially, a small-scaled model of a “legitimacy crisis” — the kind we may ultimately be facing if 1) Muller et al. produce proofs of crimes (which, come on; of course they will) and 2) Congress does nothing.
I’m not sure how that will play out — as I just wrote on Yastreblyansky’s blog, we’re dealing with two contradictory ideas that each get stronger and stronger, and they’re heading for each other like speeding trains approaching a collision: on the one hand, the President is breaking the law over and over and may have been elected by means of treasonous interference (which, obviously, is as serious as it gets)…and, on the other hand, there seems to be this placid, resigned consensus that nothing will be done about it.
I have no idea how this contradiction will resolve. I hope the Rodney King riots (or, the 1960s marches, which have already been repeated, the second time as farce or at least as ineffective theater) aren’t the way it has to go.