Image Credits: CQ-Roll Call via Getty Images, FILE.
One of the more confounding things about our present constitutional crisis is that we’ve arrived here largely through two somewhat bizarre, and mostly different, logical arguments. What makes them so strange is that the logic flows from some really weird aspects of our constitutional system.
We are supposed to have a system where everyone is equal before the law, even the president. Of course, things don’t work that way in the real world, but that’s the ideal. We don’t write laws (anymore) that say minorities will be charged for crimes that white people are allowed to commit with impunity, and we don’t have statutes that say poor people will do more time in prison for committing the same crimes as rich people. That’s how things work out too often, but it’s not because that’s what the law says.
Yet, we have one American, the president of the United States, that the Department of Justice is not allowed to prosecute. There are many people who dispute this fact, but it’s the official opinion of the DOJ’s Office of Legal Counsel. The president is different from everyone else in this single sense, and that would place him above the law if it were not for the fact that Congress has the constitutional power to remove him from office for treason or high crimes and misdemeanors.
The problem for Congress is that their investigative powers are limited. I discussed their power of inherent contempt last week, but they haven’t exercised the power to arrest people and hold trials since 1935. They are obviously not going to arrest the president and put him in a cell in the basement of the Capitol Building. As a result, they are dependent on the other two branches of government to enforce their subpoenas and give teeth to their requests for information and cooperation. The Justice Department is part of the Executive Branch and controlled by the president, so they are unreliable at best as an ally of any Congress that wants to investigate their boss. As for the judicial branch, they can compel people to give Congress what they request, but they can’t charge anyone with crimes that occur outside of their courtrooms. No court is going to decide whether the president should be charged with insurance fraud, campaign finance violations, or conspiring with a foreign nation to win a presidential election.
Congress can perform some investigative work, but they are no substitute for the FBI. There’s a reason that we have used special prosecutors and counsels to investigate presidential wrongdoing in the past, and it’s the same reason that Robert Mueller wasn’t hired by Congress to investigate Donald Trump and his campaign.
Yet, whatever its limitations, Congress has the sole constitutional authority and responsibility to remove a criminal president from office. If the president cannot be prosecuted and he is not supposed to be above the law, that means that Congress must ultimately decide if he’s committed crimes and, if so, whether they are high crimes. They alone can punish the president and prevent him from being above the law.
Robert Mueller accepted the contours of this argument when he concluded that he could not charge Trump with obstructing justice while he is still in office. He accepted them when he argued that Congress can hold a criminal president responsible even if the Department of Justice cannot. But he took this logic one step further.
Mueller noted that it’s standard DOJ practice not to divulge derogatory information about anyone they are not charging with a crime. This is why Trump was referred to only as Individual-One in the Michael Cohen indictments. This practice is eminently sensible and it’s coupled to a tenet of basic decency. It’s wrong for the government to call someone a criminal if they’re not going to provide an official forum for them to rebut the charges, prove their innocence and protect their reputation. Since Mueller was prohibited from charging the president with a crime, he reasoned that he should also be prohibited from accusing him of a crime.
I think his logic was flawed for the simple reason that Trump has Congress as a forum to defend himself. But most of his reasoning is coherent. Here’s how it looks:
Robert Mueller’s reasoning:
Premise: the president cannot be prosecuted for a crime by the Department of Justice while in office.
Premise: it’s unfair to accuse someone of a crime if you are not going to charge them because this denies them a forum to prove their innocence or clear their name.Conclusion: the Department of Justice cannot accuse the president of committing a crime.
Premise: the Department of Justice cannot accuse the president of committing a crime, but no one is above the law.
Premise: the Constitution gives Congress the responsibility for holding a president accountable for criminal activity.Conclusion: Congress has the responsibility of making sure the president is not above the law, determining if he has committed crimes and, if he has, finding the appropriate punishment.
These arguments are valid in the sense that if you accept the premises as true, then the conclusions follow. The flaw is, as I noted above, that the president would have had a forum to defend himself from Mueller’s accusations of guilt. In philosophical terms, these are valid arguments but they are not sound.
William Barr is operating with some different premises and he reaches different conclusions. Here is how his arguments look:
William Barr’s reasoning:
Premise: the president cannot be prosecuted for a crime by the Department of Justice while in office.
Premise: it’s unfair to accuse someone of a crime if you are not going to charge them
Premise: it’s the responsibility of the Department of Justice to determine if the president committed a crime.Conclusion: Since the president cannot be charged and cannot be accused, he must be cleared.
Premise: the president must be cleared.
Premise: the Constitution gives the Department of Justice the sole responsibility for determining guilt.Conclusion: the president is totally exonerated and Congress has nothing to say on the matter.
The first argument is almost valid in the sense that if you accept the premises as true, then the conclusion follows. But there is a flaw. Where did Barr get the idea that because the president cannot be charged while in office that he must be cleared? He could certainly be charged after leaving office.
This is also a ridiculous argument. It’s ridiculous because it puts the president above the law. It’s all in the conclusion: the president cannot even be accused of a crime and he must be cleared.
The second argument is neither valid nor sound. If the Department of Justice must clear the president, that doesn’t mean that Congress cannot make their own determination. The second premise is false and tautological with respect to the conclusion. If the president is necessarily innocent then he cannot be guilty, and if the DOJ has the sole responsibility for determining guilt and yet is prohibited from determining guilt then they certainly cannot exonerate Trump.
Despite the clear flaws in both of these arguments, we are forced to follow them and deal with the absurd consequences that result.
Mueller says the president is guilty but he’s not allowed to say he’s guilty. Mueller says it’s up to Congress to decide guilt and consequences. Barr says that he has determined that the president is innocent, in part because it’s actually impossible for him to be guilty, and that’s the end of the matter. He can withhold evidence from Congress and refuse to testify because it’s not Congress’s responsibility to determine guilt.
There’s a reason why Congress has to initiate impeachment proceedings. If they don’t, this nutso logic will stand. If, on the other hand, they insist that it is their responsibility to make their own determination, they can at least go into court and make a good constitutional argument that they’re entitled to every single thing they require to make a good judgment. If they leave things as they are, no future president will be accountable, even in theory.
