Catch-45

The twisted logic of Trump defenders would make a fine Joseph Heller novel.

There are many things you could call the professional Trump apologist: loyal, creative, unrelenting. Logically consistent? Not so much.  

“Congress is too partisan to investigate the president!”

“The special counsel is too partisan to investigate the president!”

See also:

“Only Congress can investigate the president!”

“Congress can’t investigate the president unless there’s a legislative purpose!”

Of course these arguments are purely subjective, intended to service a partisan agenda, not a coherent constitutional vision. But to the extent there’s a common thread running through this mottled quilt, it’s a maximalist conception of presidential power and discretion, understood generally as the “unitary executive.”

The unitary executive is one of those constitutional topics that generates far more heat than light. Once a favored bogeyman of George W. Bush administration critics, a reference to the “unitary theory” was often another way of saying “I disapprove of the president’s decision.”

For a flavor of the confusion about what people meant by it, watch this amusing exchange between then-chairman of the House Judiciary Committee John Conyers and John Addington, chief of staff to Vice President Cheney.

 

As Addington explains, the unitary executive is a simple concept. There is one president of the United States in whom “Executive power shall be vested.” This makes intuitive sense. As citizens we should want our president to be accountable for the executive branch. A unitary executive is what makes elections matter. It’s a president we’re choosing, not a bureaucracy, let alone a “deep state.”

But if you take this too far, you run into problems. What would we think about a president who made all of the decisions? It’s one thing to decide whether to sign or veto a bill, or to send an aircraft carrier to a global hotspot. It’s another to approve an FCC broadcasting license, or to enforce environmental regulations against a supporter’s oil refinery, or to prosecute a congressman for corruption.

So it’s probably best to think of the unitary executive as a presumptive starting point. Taking care that the laws are faithfully executed sometimes means delegating decisions to non-political underlings, lest the public begin to worry that laws are being twisted to serve purely partisan ends or to benefit a president’s financial interests.

Such practical considerations naturally arise when a president is suspected of a crime. During the Watergate investigation, Elliot Richardson’s confirmation as attorney general was contingent on his naming a “special prosecutor” to probe White House involvement in the break-in of Democratic party headquarters. Despite Archibald Cox’s promise to pursue the case “wherever that trail may lead,” he was fired on President Nixon’s orders when he insisted on access to a secret Oval Office taping system.

This was a perfect example of the unitary executive coming into conflict with the president’s duty to faithfully execute the laws. Nixon had the absolute authority to fire Cox, but in so doing he betrayed his oath of office.

In the wake of Nixon’s resignation, Congress passed the Ethics in Government Act of 1978, which created the office of independent counsel. While the attorney general would still be responsible for requesting an independent counsel, that counsel would be named by a panel of federal judges, and could be removed from office only for cause.

The independent counsel would also have the power to refer information relating to impeachment to Congress. According to the statute,

An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.

Interestingly, this left no recourse or discretion for others in the executive branch. The independent counsel, in his or her sole determination, would decide what threshold might “constitute grounds for an impeachment.” Was this an offense against the unitary executive? Probably. But by taking the decision out of the hands of the president’s men, it accorded with the much more venerable principle that no man should be judge in his own case.

The office of independent counsel was allowed to lapse in 1999, after the ill-fated impeachment of President Clinton. Investigations of high-ranking executive branch officials would now return to the Department of Justice, subject to oversight by the attorney general and, ultimately, the president. But one legacy of the Watergate-era remained: the 1973 opinion (later updated in 2000) by the Justice Department’s Office of Legal Counsel (OLC) that the president could not be indicted.

And so Robert Mueller faced a huge conundrum: how do you investigate a presidential campaign and a White House if you can’t take it to its prosecutorial conclusion?

Mueller’s answer was to write an impeachment referral in everything but name. He observed that “while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible.” Mueller also argued “that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” (emphasis mine)

It’s worth pausing and reflecting on this point: among the special counsel’s arguments for not accusing Trump of a crime was that it could “potentially preempt” his impeachment.

Despite his tendentious and at times speculative analysis, National Review’s Andy McCarthy is correct that “The Mueller Investigation Was Always An Impeachment Probe.” But this conclusion is little more than a truism. If a president cannot be charged with a crime, any investigation into his criminality is, by definition, a kind of impeachment probe.

This makes the decision by Attorney General Bill Barr and his deputy Rod Rosenstein to “conclude that the evidence… is not sufficient to establish that the President committed an obstruction-of-justice offense” more of an advisory impeachment opinion than a standard prosecutorial conclusion. Indeed, that can be the only purpose of their determination, given the Justice Department policy against indicting a sitting president.

Fox News analyst Brit Hume took the next logical step, asking rhetorically “what was the point of investigating in the first place?”

https://twitter.com/brithume/status/1133759820165783553?s=21

One need only read the final page of the Mueller report for the answer: “The protection of the criminal justice system from corrupt acts by any person— including the President—accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law.”

Writing for Politico, Rich Lowry criticized Mueller for “effectively conducting an impeachment inquiry from within the executive branch… It should be up to Congress, not an inferior executive branch official who’s the functional equivalent of a U.S. attorney, to launch such an inquiry.” Interestingly, Lowry doesn’t criticize Barr and Rosenstein for intruding on this congressional prerogative by clearing the president of obstruction. Isn’t that Congress’s decision?

But let’s assume Lowry is correct. How exactly would this work? If every criminal investigation of the president is really an impeachment inquiry, and only Congress should undertake impeachment inquiries, we’ve talked ourselves into a permanent select committee on impeachment.

And if you take Trump administration lawyers at their word, it would have to be impeachment. As White House counsel Pat Cipollone explained to House Judiciary Committee Chairman Jerry Nadler, a mere congressional investigation is only legitimate if it serves a legislative purpose.

Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice.

This is where the logic of Trump’s defenders breaks down, collapsing into a bizarre singularity where the basic concepts of justice and republican governance no longer apply. We’ve gone from “a president cannot be indicted” to “a president cannot be investigated by the executive branch” to “the president cannot be investigated by Congress.” It’s as much Lewis Carroll as Joseph Heller.

What’s the solution? For starters, I’d suggest that executive branch officials take another look at their oaths of office.

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Yes, the president’s aides and appointees answer to him, and (with some exceptions) they serve at his pleasure. But they don’t take an oath to the president; they swear to defend the Constitution.

We remember Elliot Richardson today for refusing Nixon’s order to fire the special prosecutor. It cost him his job, but he acted in accordance with his oath to defend the Constitution against all enemies. James Comey refused Trump’s entreaties to “let [Michael] Flynn go.” Robert Mueller frustrated the Justice Department by writing a roadmap for impeachment.

They didn’t blindly fall in line behind a unitary executive. You could say they were called to “a higher loyalty.”