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Sunday, June 03, 2018


His big, beautiful laurels

by Tom Sullivan


"Well, when the president does it, that means that it is not illegal," Richard Nixon told David Frost in 1977, long before Donald Trump's lawyers made that claim to Robert Mueller. It was not true then. It is not true now. But the truth has never been an obstacle to the sitting president and his aides from claiming up is down, black is white, in is out, and wrong is right.

The New York Times revealed Saturday it had obtained a secret 20-page letter sent to special counsel Robert Mueller in which the president's legal team asserts the president cannot obstruct justice in the Russia investigation because the constitution empowers him to “if he wished, terminate the inquiry, or even exercise his power to pardon.” The full letter with annotations is here.

They claim when the president does it, it is not illegal. The president cannot obstruct justice because he is the president.

Ruth Marcus writes in the Washington Post that as much as the administration's behavior telegraphed this posture, it is nonetheless "breathtaking to see it spelled out" in black and white.

"A President," the legal team writes, "can also order the termination of an investigation by the Justice Department or FBI at any time and for any reason. Such an action obviously has an impact on the investigation, but that is simply an effect of the President’s lawful exercise of his constitutional power and cannot constitute obstruction of justice."

The Trump legal team cites an obsolete obstruction statute in making their case, proving he got what he paid for (if indeed he has), just as Trump voters got the vain amateur for which they yearned. Congress broadened the obstruction statute in 2002, the Times reports. Even under the obsolete one, Jefferson Beauregard Sessions III, then senator from Alabama, and over 40 of his peers in Congress voted to remove Bill Clinton from office for obstructing justice in an investigation Clinton never asserted the power to end. Politico reported on the Trump legal theory in December:

Trump’s personal lawyer John Dowd argued in an interview with Axios on Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”

Where Sessions argued in Clinton’s case that the president had the responsibility to “defend the law,” Dowd argued that the president’s oversight of law enforcement makes it impossible for anyone in the office to obstruct it in the first place.
A lot of pixels will fly in response to the Times blockbuster, as well as panel after TV panel. I leave the constitutional arguments to others this morning. It might be more useful to ask, "What now?" A bit of creativity may be in order.

Never averse to pointless and futile gestures, some on the left will demand impeachment and insist Democrats run on it this fall. Given the current balance of the House and the tenor of the Senate, impeachment seems a pointless, time-consuming, and distracting sideshow, no matter what the Constitution recommends. Even if Democrats gain control of the House next January and proffer articles of impeachment to the Senate, the Senate will not vote to convict. Given what we've seen of Mitch McConnell's style, he might never convene a trial. Pursuit of impeachment is likely to deliver a result worse than unsatisfying, but in fact ineffective.

While the sitting president's mental capacity might have been one of the situations for which the 25th Amendment was designed, its dependence on sitting cabinet members for removing a president from office makes it a similarly unlikely vehicle for removing a president claiming imperial authority.

Mutiny perhaps? Rosa Brooks dared write in Foreign Policy 18 months ago that with civilian control of the military a deeply internalized principle, should Trump become dangerously erratic, open defiance might not be out of the question:
It’s impossible to say, of course. The prospect of American military leaders responding to a presidential order with open defiance is frightening — but so, too, is the prospect of military obedience to an insane order. After all, military officers swear to protect and defend the Constitution of the United States, not the president. For the first time in my life, I can imagine plausible scenarios in which senior military officials might simply tell the president: “No, sir. We’re not doing that,” to thunderous applause from the New York Times editorial board.
The Boston Globe offered in November several other avenues more Democratic leverage might have for influencing the president's behavior. The first of these in particular could force him step aside on his own:
Trump’s refusal to release his tax returns, for instance, would be instantly reversed if the House requested them and read them into the public record. Similarly, Congress could refuse to confirm nominees, or put other Trump priorities on hold, until he set up a proper blind trust, truly divorcing himself — and his nearest family members — from his business empire.
There may be plenty of other ways we have never explored for leveraging aside an imperial president. Just as we have never seen a president as uniquely unfit as this one. Trump long ago telegraphed that, whatever secrets they hold, publicly exposing his taxes would wound him deeply. The prospect of a new Democratic House spilling the president's dirty laundry onto the White House lawn has more than a little appeal.

Let's pray that in the meantime he doesn't start ranting about strawberries.

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For The Win 2018 is ready for download. Request a copy of my county-level election mechanics primer at tom.bluecentury at gmail.