A Matter of Interpretation

While many assert that it’s simply a matter of style, the kind of roguish disruption that is intended to shake up Washington politics to the core – a necessary change to Trump’s base – Donald Trump’s “Art of the Deal” manipulative and even dictatorial leadership is rapidly moving towards a head-on collision with the Constitution itself. Our Founding Fathers probably never pictured an iconoclastic president who not only evidences a lack of knowledge of the underlying Constitution but openly reflects disdain for many of its provisions… one whose very behavior ignores the underlying expectations of civility that these elder statesmen believed were so obvious that they did not have to be written into those founding documents.

In short, there are many Trump-activities which have precipitated unprecedented conflicts between Trump and Congress, the judiciary and even executive branch federal agencies (isn’t Trump the “executive branch”?) that do not have bright-line structures to resolve the impasse. We call each of those “conflicts without built in resolution mechanisms,” a constitutional crisis. “In political science, a constitutional crisis is a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve. Such a crisis may arise from a variety of possible causes. For example, the constitution may fail to provide a clear answer for a specific situation; the constitution may be clear but it may be politically infeasible to follow it; the government institutions themselves may falter or fail to live up to what the law prescribes them to be; or officials in the government may justify avoiding dealing with a serious problem based on overly narrow interpretations of the law.” Wikipedia.

Effectively, Donald Trump has taken credit for “legislation” much of which has been nothing but a series of executive orders, often without a constitutional basis. You can readily see that as one executive order after another is challenged in the courts with many enjoined from enforcement. But since the executive branch is responsible for enforcing court orders, what happens if the President instructs this Justice Department not to? That is a constitutional crisis. The President has not gone there… yet. FDR stacked the Supreme Court. Lincoln suspended habeas corpus. We’ve been here before.

We know Donald Trump does not like being told what he cannot do, and notwithstanding the First Amendment, he seeks to limit the highly-critical mainstream media (who seem to attack any incumbent president) and expand the severely constitutionally limited rights to sue for defamation or the dissemination of “facts” which Donald Trump does not like. He can’t, but he keeps talking about it anyway.

Likewise, Trump is appointing cabinet level officials with a mandate to reduce or eliminate their agency’s mandate, perhaps eliminate the agency itself, notwithstanding preexisting statutes that created these agencies and set their mandates in the first place. Passed by Congress and signed into law by a prior president. So when one of these agencies elects not to pursue one of the core mandates – from environmental rules to their entire existence (like the Consumer Protection Agency which request zero dollars for its going-forward budget) – it is now routine to see watchdog groups file suit to force implementation of statutory requirements by the fed. What if Trump ignores any contrary rulings?

Our founding fathers and subsequent seatings of Congress assumed that anyone stepping into the office of president would, by the dignity of the office alone, avoid obvious financial conflicts of interest such that the prohibitions and disclosures that apply to every federal employee would not be required of the president. So the “emoluments” clause in the Constitution, which prohibits foreign payments to the president, is the only legal proscription against the president in this arena. Insert: picture of Donald Trump smiling.

But the constitutional crises that has experts most confounded experts revolve around the checks and balances on the president and his potential culpability under criminal law where the federal agency that is responsible for the enforcement of federal law is the Department of Justice, a branch of government that is a direct cabinet-report to the President himself, subject to statutory restrictions (including ethical restrictions required by law). And as much as Special Prosecutor, Robert Mueller, III was appointed as an independent prosecutor to investigate various potential criminal matters (collusion with Russia in illegal influence of our elections, money laundering, obstruction of justice, etc.) concerning the President and his campaign staff, he is not really so “independent.”

Normally, within the executive branch, it is the Attorney General who has the statutory authority to appoint special prosecutors, where a neutral figure is appropriate because of possible internal conflicts of interest.  But in this instance, since AG Jeff Sessions was actually a part of the Trump campaign and part of the transition team, Sessions correctly felt that it was necessary to recuse himself from involvement in any campaign investigation. That annoyed Trump horribly who (a) thought that his cabinet appointments owed him (not the country) direct loyalty and (b) that Sessions could have otherwise contained and disposed of all those nasty allegations against the President and his campaign staff quickly as a loyal Trumper.

That recusal automatically moved that authority to the Deputy Attorney General, Rod Rosenstein, who made the Mueller appointment. Only the person holding that specific Deputy Attorney General post would, under statute, have the power to remove a special prosecutor. And while some might argue that the President always has the right to fire political appointees at any time, that Mueller was investigating the President probably would result in a judicial rejection of a direct firing.

So Donald Trump has several avenues, his lawyers tell him, to remove Mueller or to conflict him out of his prosecutorial role (in addition to bad-mouthing him, releasing a seriously-flawed memo discrediting the FBI itself and getting his Congressional cronies to join that chorus): 1. instruct Rosenstein to fire him, and if Rosenstein refuses, to replace that Deputy AG with someone who would. 2. have the Department of Justice secure an indictment of Mueller for some conflict of interest or other alleged illegal act, forcing Mueller to be disqualified from his prosecutorial role. But courts have consistently held that the president cannot use his office, exercise his appointment and pardoning rights, to escape criminal liability for his own actions. The Supreme Court dealt with these issues and those concerning using executive privilege to avoid incriminating statement during the Clinton impeachment and the Nixon Watergate era not so long ago, and thus Trump is limited in what he can actually do.

Congress has a separate power, quite outside the jurisdiction of the executive branch, to appoint its own special prosecutor. Theoretically, they could so designate Mueller, and then there is nothing that the President could do to challenge that appointment. But since the Republicans control both houses of Congress, and since about 35% of the electorate (Trump’s base) thinks Mueller’s efforts are a purely politically-motivated witch hunt – despite several indictments and even guilty pleas – they are loathe to make a congressional appointment of a special prosecutor for fear losing that essential Trump political constituency. So they dither as Democrats call for legislation supporting Mueller under a congressional mandate.

The Supreme Court has made it very clear (see US vs Nixon, 1974) that a president cannot act in a manner to escape responsibility if that president has violated the law. Expand that concept accordingly, and using his (no “her” yet) pardon power to exonerate his functionaries and perhaps even himself, firing those who are gathering criminal evidence against him, interfering in the government’s investigation of criminal activity (obstruction of justice) and attempting to use executive privilege to block culpable testimony could easily be viewed as criminal acts. Firing FBI head James Comey, under the condition of his discharge, could also be viewed as an attempt to obstruct justice.

So when is exercising the constitutional right to pardon given the president of the United States actually an illegal obstruction of justice? The Constitution does not say. When does a presidential firing of a designated prosecutor appointed to investigate the president, or the head of the FBI who may be leading a separate investigation become a criminal act (obstruction of justice) become equally unlawful, even criminal? When does the president have the right to hire and fire political appointees without political consequences? Do you see the constitutional crises brewing?

I’m Peter Dekom, and what we are witnessing is a rogue neophyte politician coming to grips with a maze of checks and balances the likes of which he simply cannot fathom… because he is, after all, the President of the United States, more powerful even (he believes) than Vladimir Putin (who has none of these worries).