It’s the Presidency, Stupid
The anti-Trump crowd needs to re-think its unconditional love for the Mueller investigation, because it is dragging Washington toward a constitutional crisis. Specifically, Mueller’s team stopped digging into Russian collusion, which looked like a dry hole, and is now investigating obstruction of justice by the president. In doing so, Mueller threatens plenary powers granted to a president by the constitution. Specifically, an American president maintains the right to discuss or direct an investigation by the FBI or DOJ, and the right to appoint or terminate FBI or DOJ employees. The US Constitution is crystal clear on this issue.
The metamorphosis into an obstruction-of-justice investigation is Mueller’s attempt to criminalize the president’s firing of James Comey and his request that Comey “see [his] way clear to letting [Mike] Flynn go.” No matter how one feels about Trump, his presidency is time-bound, and his departure confined to election results or impeachment by Congress. His fleeting time in office should not include stripping the presidency of core presidential powers, such as hiring and firing executive-branch officers – even an FBI director.
Trump was wise to bring in Rudy Giuliani, a former DOJ prosecutor, to defend this presidency on tactical matters, such as the Stormy Daniels non-disclosure agreement. Trump would also be wise to bring in Alan Dershowitz, the former Harvard law professor, to defend all presidencies on strategic matters, such as the powers granted to the executive branch by the constitution.
It is precisely when these United States have an outlier like Trump in the White House that we must turn to the US Constitution for guidance. His intemperate comments frighten people at home and abroad, and his White House creates most embarrassing moments at a startling pace. Clear-thinking American can agree Trump is the most un-presidential president of the modern era; however, are rude behavior, spurious claims, and mistakes really criminal behavior?
A constitutional crisis would arise if Mueller indicts President Trump for criminal behavior: either perjury (lying under oath) or self-serving obstruction of justice (proof of intent). Because the constitution prohibits a sitting president from prosecution, it would then fall upon Congress to impeach President Trump for “high crimes and misdemeanors.” Under this scenario, the DOJ (Rod Rosenstein), FBI (James Comey), and special counsel (Bob Mueller) worked to betray the chief executive (Donald Trump) in order to aid and abet the Congress for political purposes.
To be sure, Congress has the right to impeach a president, but the legislative branch cannot re-interpret core presidential powers just because they object to a president’s policies and personality. Trump did not obstruct justice when he pardoned Scooter Libby and Joe Arpaio. He did not commit a crime when he ordered Jeff Sessions to produce documents for Congress. The President did not obstruct justice when he fired Sally Yates or James Comey.
The constitution expressly grants every president the right to discuss or direct an investigation with the DOJ and FBI – even though the political optics might look bad – because FBI directors and attorneys general exert a core presidential power in every investigation. The constitution also expressly grants every president the right to appoint and terminate FBI directors and attorneys general. These plenary powers belong to the executive branch and someone, such as Professor Dershowitz, needs to protect the office with an eye to life after Trump.
The Wall Street Journal’s Kimberly Strassel was spot-on when she recently recommended Trump lawyers should go to federal court to secure a declaratory judgment clarifying Trump is not obstructing justice when exercising his executive authority, because this would “pre-empt any Mueller charge or even report [and] make clear that should the House impeach on obstruction, it will not be doing so on grounds that the president violated criminal law.” The founding fathers gave Stormy Daniels the right to convince evangelical Christians to vote against Trump in 2020, but they did not give Maxine Waters the right to impeach Trump because he fired James Comey.
President Trump’s lawyers should also insist he declassify and release every document associated with the Russian election-meddling and Trump-collusion probes: including FISA requests and warrants, emails and texts, and interviews with the Steele dossier author (Chris Steele). The best method of protecting we the people from political misconduct is to expose what the State Department, CIA, NSA, NDI, FBI, and DOJ were really doing. If there have been abuses of surveillance power and criminal leaks, then let the governed know. If Obama holdovers undermined the President, then let the governed know.
American governance works because of checks and balance between three branches of our government. It is working wonderfully even now, when a free press and vocal out-party do keep Trump in check. Trump can complain about fake CNN, but the network reports every blunder he makes. Trump can complain about Democrats, but they prevented his overturn of Obamacare. Even the judicial branch has checked his executive power by staying orders on immigration.
Conservatives survived eight years of Clinton’s sport-humping spree, and liberals survived eight years of Bush’s military expeditions. In spite of the partisan it’s just awful cries, America did not fall to pieces because of a single president whose behavior or decisions angered half the nation. What cannot be lost upon we the people is the 2016 presidential election results: Trump won 307 electoral votes, the popular vote in 30 states, and about 65 million votes.
In our constitutional democracy, it is possible Trump could be legally impeached or voted out of office (in 2020). It is also possible he could serve for eight years. This is how our governance works – even with Trump as president – and it is a good thing. These United States will not benefit if the unhappy mob destroys the office to destroy the man.