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.
