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Robert Mueller won’t save us

Only Congress can decide if the president is above the law.

Is the president of the United States above the law?

The question seems ridiculous on its face. But the reality of President Donald Trump forces it upon us. The president is doing things that many assumed could not, or would not, be done. He seems to believe, among other things, that he has total control over the federal law enforcement apparatus, that he has the right to pardon himself, that he cannot obstruct justice, and that he cannot be subpoenaed or indicted for any crimes he might commit.

Some of this has since been contradicted by White House press secretary Sarah Sanders, who dismissed questions about the president pardoning himself. “Thankfully, the president hasn’t done anything wrong and wouldn’t have any need for a pardon,” she said at a press briefing in June, adding that “no one is above the law.”

But let’s take the words of the president seriously. If he’s right — if he has absolute power to pardon himself from legal consequences for absolutely any wrongdoing — then we do not have a president; we have a monarch. And we are not, as John Adams once promised, “a government of laws, not of men.”

That might sound dramatic, but I don’t think it is. Consider the 20-page memo Trump’s lawyers sent to Robert Mueller’s team last summer. The document lays out a view of presidential power that is essentially boundless. It states that the president “could, if he wished, terminate” Mueller’s inquiry “or even exercise his power to pardon if he so desired.” Later, Trump’s lawyers clarified that the president can fire the FBI director “at any time and for any reason,” including to shut down an inconvenient investigation.

Or take Trump’s demand in May that the Justice Department investigate whether the FBI “infiltrated or surveilled” his campaign. The request was both unprecedented and preposterous, but it was not, as far as I can tell, illegal, even if the aim was to undercut an investigation into the president’s own campaign.

One of the many revelations in the past couple of years is that much of what we take for granted in our political system is the product of informal norms and not fixed laws. Baked into our politics is the quiet assumption that the elected leader of the country will be constrained by a sense of decency and a respect for basic liberal democratic customs, and that competition among the three branches of government will protect against deviant actors.

But what if partisanship renders Congress dysfunctional? What if the president doesn’t care about norms or customs? And what if the citizenry is so divided or cocooned or alienated that it can’t reliably pressure Congress to check an overreaching executive?

These are not new questions. When the country was founded, there were vigorous debates between supporters and opponents of the proposed Constitution. In papers, documents, and pamphlets, skeptics, known as Antifederalists, openly worried that a constitutional republic would leave us vulnerable to tyranny, and that human nature was too corruptible to trust with so much power. Now is a fine time to revisit their concerns.

Over the past year or so, I’ve spoken to dozens of law professors, former federal prosecutors, and other legal experts. I’ve asked them if the president can legally obstruct justice, if there are limits to the president’s pardon power, and if our constitutional system is capable of restraining presidential tyranny.

Javier Zarracina/Vox

Nearly everyone agrees that the Constitution forbids the president from operating outside the law, at least in theory. But the question before us is rooted in the complexities of practice, not the ideals of theory: Can our system, such as it is, bind a president who is determined to abuse his or her power?

Can the president obstruct justice?

“I need loyalty, I expect loyalty.”

That’s what President Trump reportedly said to FBI Director James Comey shortly before he fired him on May 9, 2017. Initially, Trump claimed that he fired Comey over his handling of the investigation into Hillary Clinton’s emails. He later admitted in an interview with NBC’s Lester Holt that it was about the Russia investigation.

Did he obstruct justice? Probably. But what does it even mean to say the president obstructed justice?

Obstruction of justice is defined as an attempt to impede or undermine a criminal investigation. The word “attempt” is crucial there. “It requires proof that the person corruptly or by threat influences, impedes, or endeavors to influence or impede the due administration of justice,” Joshua Dressler, a law professor at Ohio State University, told me. “It doesn’t require proof that justice was obstructed — only that the person endeavored to influence or impede justice.”

In other words, one needn’t succeed at obstructing justice to be guilty of it. It’s enough to prove that someone deliberately sought to hinder an investigation. The problem is that intent is often difficult to prove, especially in a circumstance where there are multiple contradictory motives.

In this specific case, the powers invested in the presidency complicate matters. “The president is the head of law enforcement in this country,” Eric Posner, a law professor at the University of Chicago, told me, “and if the president is the head of law enforcement, then he has the authority to hire and fire and to tell his subordinates not to pursue certain investigations.”

This is the same argument that John Dowd, who previously served as Trump’s outside lawyer, made to Axios’s Mike Allen in December. “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.”

But there are compelling counterarguments to this. Jimmy Gurulé, who served as assistant attorney general for George H.W. Bush, insists that the constitutional right to hire and fire is not absolute. “There’s no constitutional right to hire and fire that is without exception,” he told me.

Gurulé sees at least three instances in which the president arguably violated obstruction of justice laws. The first is the actual firing of Comey. “If it’s clear that this was done with the aim of interfering with the investigation, that’s obstruction of justice.”

The second instance has to do with Trump’s conversations with Comey. “We know that the president asked Sessions and others to leave the room so that he could talk privately with Comey,” Gurulé said. “If the president urged Comey to back off [Michael] Flynn, or even if he expressed his desire to see Flynn left alone, that strikes me as endeavoring to influence or obstruct the due administration of justice.”

The third potential instance of obstruction is Trump’s alleged conversation with Director of National Intelligence Dan Coats. According to the Washington Post, Trump asked Coats in March 2017 “if he could intervene with then-FBI Director James B. Comey to get the bureau to back off its focus on former National Security Adviser Michael Flynn in its Russia probe.” As with the Comey interactions, the whiff of obstructionism is strong here.

These are all discrete cases, Gurulé says, and they shouldn’t be conflated. Even if there’s a sound justification for Comey’s firing, “that doesn’t pertain at all to the conversation between Trump and Comey or between Trump and Coats.”

Where one lands on this question has a lot to with how one views the presidency. Yes, the president has the power to hire and fire whomever he likes, but, as former federal prosecutor Renato Mariotti explained to me, “just because the president has the power to do something doesn’t necessarily mean it’s lawful for him to do so.” For instance, the president can’t hire someone in exchange for a bribe, or fire someone due to their race or religion.

There’s also what’s called the “take care clause” of the Constitution (more on this below), which demands that the president “faithfully” execute the laws of the nation. And no serious person would argue that the president is acting in “good faith” when he fires the FBI director to stunt an investigation into his own campaign.

But let’s assume, for a moment, that it could be proven, beyond a shadow of a doubt, that Trump sought to obstruct justice when he fired James Comey. Then what? If you listen to pundits and prognosticators closely, you’ll notice the stakes of this debate are often left undefined. Implicitly, commentators talk as if proving obstruction of justice would cause ... something ... to happen.

Here’s the scary thing: It’s not at all clear that that’s true. Applying the law to the president poses some extraordinary challenges, and no one, at least right now, has a plan to surmount them.

Case in point: the power to pardon.

The limits of pardon power

Imagine that the Mueller probe concludes and it’s even worse than we suspected. Imagine that Russia meddled in our election and that members of the Trump campaign were knowingly complicit in that effort. Imagine further that the president is shown to have covered this up and obstructed the investigation meant to expose the truth. If all that came to pass, Trump could, as he himself has said, pardon himself and everyone else involved. What then?

The Constitution doesn‘t impose limitations on the president’s right to pardon, except “in cases of impeachment.” But the issue of presidential self-pardons remains an area of genuine uncertainty, mostly because no president has even broached the possibility before.

The framers of the Constitution thought long and hard about the risks of imbuing the president with unlimited pardon power. Alexander Hamilton laid out his logic in one of the more famous Federalist Papers. Hamilton believed “humanity and good policy” dictated that the pardon should remain in the hands of the president, as opposed to Congress.

But here’s the problem: He assumed that future presidents would be constrained by a “sense of responsibility” and would exercise such awesome power with “scrupulousness and caution.” The “dread of being accused of weakness or connivance,” he insisted, would “beget equal circumspection.”

From our post-Trump perch, Hamilton’s optimism appears misplaced. The current president is not burdened by a “sense of responsibility” and shows no signs of exercising “scrupulousness and caution.” So where does that leave us?

Although the Constitution doesn’t settle the question, some legal scholars believe an opinion issued from the Office of Legal Counsel in 1974, in response to Richard Nixon’s Watergate scandal, offers some guidance. “Under the fundamental rule that no one may be a judge in his own case,” the document reads, “it would seem that the president cannot pardon himself.”

Diane Marie Amann, a law professor at the University of Georgia, told me that this ought to “put an end to the current discussion.” But Jessica Levinson, who teaches law at Loyola Law School, believes this is hardly a definitive ruling and “not a conclusion you want to take to the proverbial bank.”

If we want a more solid footing, we’ll have to look to the Constitution, since that is where the pardon power comes from. The most interesting argument I’ve heard thus far was from Jed Shugerman and Ethan Leib, both law professors at Fordham University. They claim that the Constitution prohibits the president from pardoning for the purpose of self-protection, for the same reason it forbids using the pardon power for the purpose of financial gain.

Their argument is based on a line in the Constitution known as the “take care clause,” which obligates the president to “take care that the laws be faithfully executed.” The clause, Shugerman and Leib argue, mandates that the president act in such a way as to advance the public interest and not the president’s private interests.

Here’s how Shugerman explained it to me in a separate interview:

This language comes directly from fiduciary documents from the 17th and 18th centuries. Fiduciary duties still come up today in the context of corporate boards, trusts, wills, and other legal documents that impose obligations on people to act in the best interests of the people they’re serving. A fiduciary duty means you can’t serve your own personal interests over the interests of your client or company or, in the case of the president, your country.

In the same way a lawyer or a CEO must act in the best interests of her client or company, a president is compelled by the Constitution to execute the laws in such a way as to protect the best interests of the people. By that logic, a presidential self-pardon would be unconstitutional and therefore illegal.

This is a plausible reading of the Constitution, but, as Shugerman admits, it’s never been tested in court and he has no idea if it would hold. (Other legal experts I spoke to told me that Shugerman is right but they doubt the argument would sway a court.)

But even if a slew of presidential pardons could be shown to be illegal, who would enforce that judgment? Unlike for an average citizen who breaks the law, justice in this case is not swift and sure — the police do not march into the Oval Office. The remedies, rather, are political, and thus uncertain.

Between 1787 and 1788, a public debate raged between the so-called Federalists and Antifederalists about whether to ratify the Constitution. The Federalists, led by James Madison, John Jay, and Alexander Hamilton, argued in defense of the Constitution, and the Antifederalists, whose authors remained anonymous, argued against it.

When I first read these papers, I remember how badly I wanted the Federalists to be right. And yet as I read along, I kept nodding in agreement to the Antifederalist arguments. I still think the Federalists got more things right than wrong, but I keep returning to the Antifederalists and their deep skepticism about our capacity to restrain a tyrannical executive.

The Federalists were pessimistic about human nature, but, as the Hamilton quotes above suggest, they had something of a blind spot for the presidency. True, they established checks and balances, but they placed an immense amount of power in the executive. The Antifederalists never tired of pointing this out, and their arguments will strike the contemporary reader as depressingly relevant. Here’s a typical passage from Antifederalist No. 67:

His power of nomination, garrisoned by troops at his direction, unrestrained power of granting pardons for treason, which may be used to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent discovery of his own guilt; his duration in office for four years — these and various other principles evidently prove the truth of the position — that if the president is possessed of ambition, he has power and time sufficient to ruin his country.

Here’s another passage from Antifederalist No. 69:

We may have, for the first president, and perhaps, one in a century or two afterwards (if the government should withstand the attacks of others) a great and good man, governed by superior motives; but these are not events to be calculated upon in the present state of human nature.

So the concern, even back then, was that the extraordinary powers invested in the presidency left the country vulnerable to a demagogue or crook, someone capable of exploiting the office without any regard for the health of the republic. But the Antifederalists weren’t merely worried about corruption; they also questioned whether we could sustain the kind of culture that would support a robust constitutional system.

The American founders were attuned to these concerns, and they built failsafes into the system in order to assuage them. They preferred a democratic republic to a direct democracy because they believed that tyranny of the majority is tyranny all the same.

They thought constitutional government was vital to the mediation of popular passions; it was the best way to balance the totalizing tendencies of oligarchy and democracy. And they were convinced that Congress would always have the space it needed to fulfill its constitutional duties — namely checking the president and channeling mass opinion into sensible laws.

But there are many things the founders did not foresee, and their oversights help explain why Congress is failing us today.

Congress is supposed to be our failsafe

The founders were aware of the dangers of partisanship. Federalist Paper No. 10, authored by James Madison, is as persuasive an argument against “factions” as you’ll find anywhere. They designed a system that would reduce the influence of factions and eliminate the need for parties. But that system is no longer operating as they envisioned, as partisanship has overwhelmed our politics.

If, for example, the Democrats controlled all of Congress instead of just the House, there would be no concerns about a Republican tyrannical executive, because Democrats in Congress could use their power to check that. But the system we have is totally dysfunctional if the same party controls all of the government, or even just the executive and the Senate, as is the case today. Vox’s Ezra Klein explained this well in his December essay about impeachment:

The Founding Fathers envisioned a political system without parties, where the salient political competitions would be between states and between branches rather than between Democrats and Republicans. “There was an assumption that the different branches check each other because they all have different politics,” says Julia Azari, a political scientist at Marquette University.

Instead, parties share the same politics across branches; congressional Republicans today see their fates as intertwined with Trump’s, and so they protect him, because to protect him is to protect themselves. Believing that the American political system would resist parties and then designing our mechanisms of accountability around that assumption was, Azari continues, “the most important constitutional failure.”

To date, serious impeachment proceedings have only been carried out when Congress is controlled by the opposing party to the White House. “Impeachment is dysfunctional,” Azari says. “It’s proven to be a partisan tool and nothing more.”

Congress was supposed to be part of an institutional wall between popular passions and the application of power, but that wall has broken down, as have the cultural norms that helped reinforce it. Congress is dysfunctional for the same reason impeachment is: partisanship. Republicans, after all, could check the president if they wanted to — but that’s a political decision they’re unwilling to make. And the calculus is clear: They don’t think enough voters care. They might be right, too.

Trump’s legal team has already decided that the best strategy is to muddy the epistemological waters, to overwhelm the public with so much bullshit that they no longer believe anything. “This case is not going to be tried before a jury,” Rudy Giuliani told Time magazine’s Molly Ball and Tessa Berenson. “It’s not a criminal case. It’s an investigation that’s going to result in a report, and the issue will be what happens to that report, and public opinion is going to have a lot to do with that.”

Their strategy is working. Fox News and the rest of the conservative media have done everything in their power to discredit Mueller’s investigation. Republican leaders in the House and Senate have thrown more and more doubt on Mueller’s motives, echoing the president’s claim that the investigation is a “witch hunt.”

What we are seeing from the legislature is not a ringing declaration that even the president is subject to the law, and that questions of justice transcend partisanship, but a constant — and, for much of the public, confusing — assault on the very idea that apparent lawbreaking on the part of the president should even be investigated.

Javier Zarracina/Vox; Getty Images

Robert Mueller can’t save us

There’s an apocryphal story law professors love to tell about President Andrew Jackson.

In 1832, the Cherokee lived on land in Georgia that was promised to them by treaty. When they discovered gold on that land, the state of Georgia tried to seize it. The Cherokee promptly sued, leading to a Supreme Court decision in their favor, thanks in large part to Chief Justice John Marshall.

When Georgia ignored this ruling, President Jackson is alleged to have said, “John Marshall has made his decision; now let him enforce it.” He then sent troops to evict the Cherokee and that led to thousands of Native Americans dying along the Trail of Tears.

Maybe Jackson said that, maybe he didn’t. But that’s not really the point. The point is that there are limits to the law. In the end, laws are as good as the people and institutions that prop them up. If we don’t have a culture that demands the fulfillment of the obligations set forth in the Constitution, not a word of it matters. Even if the institutional levers are in place, someone has to pull them, and if they’re not willing to pull them, then those institutions are as dead as the ideas that inspired them.

The framers of the Constitution did not want, and did much to prevent, abuses of power by a tyrannical executive. But they did not anticipate the unhappy collision between a president who truly doesn’t care about constitutional norms and a Congress unwilling to exercise its checks on the president, and they certainly did not foresee a media ecosystem as chaotic as ours.

So let’s return to the core question: Is the president above the law?

The truth is that there isn’t a clear answer. By the lights of the Constitution, the answer is clearly no. But the Constitution is just a document, and the law is just a construct. If Trump says he is above the law, and if Congress does nothing to stop him, and if the Republican base supports them, then the president is effectively above the law. And then we’ve got either a constitutional crisis or, perhaps worse, a new precedent on our hands.

Our system contains no ultimate trigger, no guarantee that it will self-correct. The custodians of the Constitution, namely Congress, have to affirm it or it will cease to matter. It’s often said that impeachment is a political remedy, but it’s also a politicized remedy — and that means, in some cases, it is no remedy at all.

A lot of people are waiting anxiously for the Mueller investigation to conclude. But even if Mueller lays out a slam-dunk case against the president, nothing will be decided. The president and his legal team have made clear their intention to dismiss Mueller’s findings, whatever they turn out to be. And if the president pardons himself and everyone involved, we will learn, in the most concrete way imaginable, whether the president is above the law.

If I told you I was optimistic, I’d be lying.