Our 18th century Constitution causes confusion in the 21st by granting the president great power but also demanding great accountability. Donald Trump’s defenders believe his authority forges an impenetrable shield that deflects criminal charges. His critics find wrongdoing in every presidential action, order or tweet, especially on law enforcement. Both camps are mistaken.
The framers established an executive more formidable than many 18th century monarchs. As James Madison observed, the president enjoys “the power of appointing, overseeing and controlling those who execute the laws.” President Trump controls the Department of Justice, including the special counsel, Robert S. Mueller III, who is a functionary appointed under DOJ regulations. And presidents have long directed investigations and prosecutions. George Washington and Thomas Jefferson routinely commanded prosecutors, and John Adams ordered the filing of Sedition Act cases. Condemning presidential interference in law enforcement is akin to criticizing justices for “interfering” in Supreme Court cases.
Despite arguments to the contrary, the president’s authority extends to firing Mueller. Under a 1999 DOJ regulation, special counsels “may be disciplined or removed from office only by the personal action of the attorney general.” But a regulation cannot restrict the Constitution’s grant to the president of “the executive power,” which has long been understood to include the right to fire Cabinet and lesser officers.
The pardon power further extends the president’s influence. Trump could give Michael Flynn a “get out of jail free” card immediately. He could pardon friends and family for crimes arising from their involvement with Russians. He could pardon those who might testify against him. We believe the president could even pardon himself. The Constitution places only impeachments and state-law crimes beyond the president’s pardon power.
As formidable as the presidency is, the Constitution includes several mechanisms to limit its power: the very structure of the office; its bond to the electorate; Congress’s control over the size, organization and funding of government; and, ultimately, impeachment. The framers created a single chief executive because, as Alexander Hamilton argued, a triumvirate or executive council would “tend to conceal faults and destroy responsibility.” As Harry Truman rightly said, “The buck stops here.”
The framers also expected that presidential electors could humble a corrupt president by denying him reelection. This constraint was weakened when presidents were limited to two terms; they have much less to lose during their second and final term. A modern substitute — public opinion — may prove equal to the task. As Abraham Lincoln observed, “Public sentiment is everything. With it, nothing can fail; against it, nothing can succeed.” Trump, for example, could make Russia our new best friend or repeal environmental regulations wholesale, but he probably wouldn’t adopt such deeply unpopular policies.
Congress, the first branch of the government, also checks the president. Only Congress can create and fund executive agencies. Only Congress can enact the laws that authorize prosecutions, investigations and regulations. Without the Senate’s consent, presidents cannot appoint judges, confirm executive officers or make treaties. If Congress refuses to fund the White House, the president’s wars or the machinery of law enforcement, it can paralyze the executive.
Impeachment is the capstone of all these constraints. It is no cakewalk, especially because two-thirds of senators must vote to convict. But even the threat of removal can influence presidents. Dozens of representatives and several senators already wish to oust Trump. Those numbers will grow if Trump’s approval ratings decline and Democrats win control of the House or Senate in 2018.
The Constitution’s accountability mechanisms caution against rash presidential decisions ruled by anger, frustration or pique. For instance, if Trump pardoned everyone involved with Russiagate, Congress could retaliate with its budget power, shelve administration proposals and block nominees. In general, presidents must distinguish what they can do from what they should do. Impeachment’s “high crimes and misdemeanors,” we believe, include not just criminal acts, but also abuse of power, maladministration and even poor judgment. Trump could fire Mueller, but the backlash might unify both parties against him.
Recently, Trump’s critics have raised the possibility of criminal punishment after he leaves office. Many of them insist that the president obstructed justice when he removed James B. Comey as FBI director. The president’s defenders are right to respond that Congress cannot make the mere exercise of a constitutional power a crime. But it does not follow that every constitutional act of the president is immune from criminal sanction. Suppose a president, while exercising his foreign affairs authority, committed treason by aiding the enemies of the United States. He could not cite his constitutional powers as an absolute defense to a treason charge.
On the question of obstruction of justice, the statutes do not specifically mention the president (or federal judges). In other words, the courts might conclude that these laws do not apply to a president’s constitutional acts. Or they might decide that Trump’s debatable actions — requesting lenience for Flynn and firing Comey — are not corrupt beyond a reasonable doubt, as obstruction requires. The president may have believed Flynn had served his country and that prosecution would waste resources. Likewise, removing Comey was not clearly corrupt because of the many grounds to fire him, including his mishandling of the Hillary Clinton email probe.
Loose talk of a criminal obstruction prosecution is premature. Impeachment would come first, and only if legislators believe the evidence merits conviction and removal. We are a long way from seeing the president booted from office or clapped in irons.