The FBI investigation into Donald Trump, one of the most ludicrous and deplorable men to ever sit in the Oval Office, was a valuable lesson in just how precariously justice balances on the edge of a knife in the United States. The ease with which any president could obstruct or eliminate accountability for his or her misdeeds should frighten all persons regardless of political ideology.
Let’s consider the methods of the madness, keeping in mind that whether or not a specific president like Trump is innocent of crimes or misconduct, it’s smart to have effective mechanisms in place to bring to justice later executives that are guilty. The stupidity of the system could be used by a president of any political party. This must be rectified.
A president can fire those investigating him — and replace them with allies who could shut everything down
The fact the above statement can be written truthfully about an advanced democracy, as opposed to some totalitarian regime, is insane. Trump of course did fire those looking into his actions, and replaced them with supporters.
The FBI (not the Democrats) launched an investigation into Trump and his associates concerning possible collusion with Russia during the 2016 election and obstruction of justice, obviously justified given his and their suspicious behavior, some of which was connected to actual criminal activity, at least among Trump’s associates who are now felons. Trump fired James Comey, the FBI director, who was overseeing the investigation. Both Trump and his attorney Rudy Giuliani publicly indicated the firing was motivated by the Russia investigation; Comey testified Trump asked him to end the FBI’s look into Trump ally Michael Flynn, though not the overall Russia inquiry.
The power to remove the FBI director could be used to slow down an investigation (or shut it down, if the acting FBI director is loyal to the president, which Andrew McCabe was not), but more importantly a president can then nominate a new FBI director, perhaps someone more loyal, meaning corrupt. (Christopher Wray, Trump’s pick, worked for a law firm that did business with Trump’s business trust, but does not seem a selected devotee like the individuals you will see below, perhaps because by the time his installment came around the investigation was in the hands of Special Counsel Robert Mueller.) The Senate must confirm the nomination, but that isn’t entirely reassuring. The majority party could push through a loyalist, to the dismay of the minority party, and that’s it. Despite this being a rarity, as FBI directors are typically overwhelmingly confirmed, it’s possible. A new director could then end the inquiry.
Further, the president can fire the attorney general, the FBI director’s boss. The head of the Justice Department, this person has ultimate power over investigations into the president — at least until he or she is removed by said president. Trump made clear he was upset with Attorney General Jeff Sessions for recusing himself from overseeing the Russia inquiry because Sessions could have discontinued it. It was reported Trump even asked Sessions to reverse this decision! Sessions recused himself less than a month after taking office, a couple months before Comey was fired. For less than a month, Sessions could have ended it all.
Deputy Attorney General Rod Rosenstein, luckily no Trump lackey, was in charge after Sessions stepped away from the matter. It was Rosenstein who appointed Robert Mueller special counsel and had him take over the FBI investigation, after the nation was so alarmed by Comey’s dismissal. Rosenstein had authority over Mueller and the case (dodging a bullet when Trump tried to order Mueller’s firing but was rebuked by his White House lawyer; Trump could have rescinded statutes that said only the A.G. could fire the special counsel, with an explosive court battle over constitutionality surely following) until Trump fired Sessions and installed loyalist Matt Whitaker as Acting Attorney General. Whitaker is a man who
defended Donald Trump Jr.’s decision to meet with a Russian operative promising dirt on Hillary Clinton. He opposed the appointment of a special counsel to investigate Russian election interference (“Hollow calls for independent prosecutors are just craven attempts to score cheap political points and serve the public in no measurable way.”) Whitaker has called on Rod Rosenstein to curb Mueller’s investigation, and specifically declared Trump’s finances (which include dealings with Russia) off-limits. He has urged Trump’s lawyers not to cooperate with Mueller’s “lynch mob.”
And he has publicly mused that a way to curb Mueller’s power might be to deprive him of resources. “I could see a scenario,” he said on CNN last year, “where Jeff Sessions is replaced, it would [be a] recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigation grinds to almost a halt.”
Whitaker required no confirmation from the Senate. Like an official attorney general, he could have ended the inquiry and fired Robert Mueller if he saw “good cause” to do so, or effectively crippled the investigation by limiting its resources or scope. That did not occur, but it’s not hard to imagine Whitaker parroting Trump’s wild accusations of Mueller’s conflicts of interest, or whipping up some bullshit of his own to justify axing the special counsel. The same can be said of Bill Barr, who replaced Whitaker. Barr, who did need Senate confirmation, was also a Trump ally, severely endangering the rule of law:
In the Spring of 2017, Barr penned an op-ed supporting the President’s firing Comey. “Comey’s removal simply has no relevance to the integrity of the Russian investigation as it moves ahead,” he wrote. In June 2017, Barr told The Hill that the obstruction investigation was “asinine” and warned that Mueller risked “taking on the look of an entirely political operation to overthrow the president.” That same month, Barr met with Trump about becoming the president’s personal defense lawyer for the Mueller investigation, before turning down the overture for that job.
In late 2017, Barr wrote to the New York Times supporting the President’s call for further investigations of his past political opponent, Hillary Clinton. “I have long believed that the predicate for investigating the uranium deal, as well as the foundation, is far stronger than any basis for investigating so-called ‘collusion,’” he wrote to the New York Times’ Peter Baker, suggesting that the Uranium One conspiracy theory (which had by that time been repeatedly debunked) had more grounding than the Mueller investigation (which had not). Before Trump nominated him to be attorney general, Barr also notoriously wrote an unsolicited 19-page advisory memo to Rod Rosenstein criticizing the obstruction component of Mueller’s investigation as “fatally misconceived.” The memo’s criticisms proceeded from Barr’s long-held and extreme, absolutist view of executive power, and the memo’s reasoning has been skewered by an ideologically diverse group of legal observers.
What happy circumstances, Trump being able to shuffle the investigation into his own actions to his first hand-picked attorney general (confirmation to recusal: February 8 to March 2, 2017), an acting FBI director (even if not an ally, the act itself is disruptive), a hand-picked acting attorney general, and a second hand-picked attorney general. Imagine police detectives are investigating a suspect but he’s their boss’ boss. That’s a rare advantage.
The nation held its breath with each change, and upon reflection it seems almost miraculous Mueller’s investigation concluded at all. Some may see this as a testament to the strength of the system, but it all could have easily gone the other way. There were no guarantees. What if Sessions hadn’t recused himself? What if he’d shut down the investigation? What if Comey, McCabe, or Rosenstein had been friendlier to Trump? What if Whitaker or Barr had blown the whole thing up? Yes, political battles, court battles, to continue the inquiry would have raged — but there are no guarantees they would have succeeded.
Tradition, political and public pressure…these mechanisms aren’t worthless, but they hardly seem as valuable as structural, legal changes to save us from having to simply hope the pursuit of justice doesn’t collapse at the command of the accused or his or her political allies. We can strip the president of any and all power over the Justice Department workers investigating him or her, temporarily placing A.G.s under congressional authority, and eradicate similar conflicts of interest.
The Department of Justice can keep its findings secret
Current affairs highlighted this problem as well. When Mueller submitted his finished report to Bill Barr, the attorney general was only legally required to submit a summary of Mueller’s findings to Congress. He did not need to provide the full report or full details to the House and Senate, much less to the public. He didn’t even need to release the summary to the public!
This is absurd, obviously setting up the possibility that a puppet attorney general might not tell the whole story in the summary to protect the president. Members of Mueller’s team are currently saying to the press that Barr’s four-page summary is too rosy, leaving out damaging information about Trump. The summary says Mueller found no collusion (at least, no illegal conspiring or coordinating), and that Barr, Rosenstein, and other department officials agreed there wasn’t enough evidence of obstruction of justice. But one shouldn’t be forced to give a Trump ally like Barr the benefit of the doubt; one should be able to see the evidence to determine if he faithfully expressed Mueller’s findings and hear detailed arguments as to how he and others reached a verdict on obstruction. Barr is promising a redacted version of the report will be available this month. He did not have to do this — we again simply had to hope Barr would give us more. Just as we must hope he can be pressured into giving Congress the full, unedited report. This must instead be required by law, and the public is at least owed a redacted version. Hope is unacceptable. It would also be wise to find a more independent, bipartisan or nonpartisan way to rule on obstruction if the special counsel declines to do so — perhaps done in a court of law, rather than a Trump lackey’s office.
The way of doing things now is simply a mess. What if an A.G. is untruthful in his summary? Or wants only Congress to see it, not the public? What if she declines to release a redacted version? What if the full report is never seen beyond the investigators and their Justice Department superiors, appointed supporters of the president being investigated? What if a ruling on obstruction is politically motivated?
We don’t know if the president can be subpoenaed to testify
While the Supreme Court has established that the president can be subpoenaed, or forced, to turn over materials (such as Nixon and his secret White House recordings), it hasn’t specifically ruled on whether the president must testify before Congress, a special counsel, or a grand jury if called to do so. While the president, like any other citizen, has Fifth Amendment rights (he can’t be “compelled in any criminal case to be a witness against himself,” risking self-incrimination), we do need to know if the executive can be called as a witness, and under what circumstances. Mueller chose not to subpoena Trump’s testimony because it would lead to a long legal battle. That’s what unanswered questions and constitutional crises produce.
We have yet to figure out if a sitting president can be indicted
If the executive commits a crime, can he or she be charged for it while in office? Can the president go to trial, be prosecuted, sentenced, imprisoned? We simply do not know. The Office of Legal Counsel at the Justice Department says no, but there is fierce debate over whether it’s constitutional or not, and the Supreme Court has never ruled on the matter.
There’s been much worry lately, due to Trump’s many legal perils, over this possible “constitutional crisis” arising, a crisis of our own design, having delayed creating laws for this sort of thing for centuries. For now, the trend is to follow Justice Department policy, rather helpful for a president who’s actually committed a felony. The president can avoid prosecution and punishment until leaving office or even avoid it entirely if the statute of limitations runs out before the president’s term is over!
“Don’t fret, Congress can impeach a president who seems to have committed a crime. Out of office, a trial can commence.” That is of little comfort, given the high bar for impeachment. Bitter partisanship could easily prevent the impeachment of a president, no matter how obvious or vile the misdeeds. It’s not a sure thing.
The country needs to rule on this issue, at the least eliminating statutes of limitations for presidents, at most allowing criminal proceedings to occur while the president is in office.
We don’t know if a president can self-pardon
Trump, like the blustering authoritarian he is, declared he had the “absolute right” to pardon himself. But the U.S. has not figured this out either. It’s also a matter of intense debate, without constitutional clarity or judicial precedent. A sensible society might make it clear that the executive is not above the law — he or she cannot simply commit crimes with impunity, cannot self-pardon. Instead, we must wait for a crisis to force us to decide on this issue. And, it should be emphasized, the impeachment of a president who pardoned him- or herself would not be satisfactory. Crimes warrant consequences beyond “You don’t get to be president anymore.”
Subpoenas can be optional
If you declined to show up in court after being issued a subpoena, you would be held in contempt. You’d be fined or jailed because you broke the law. It’s supposed to work a similar way when congressional committees issue subpoenas, instructing people to come testify or produce evidence. It is illegal to ignore a subpoena from Congress. Yet Trump has ordered allies like Carl Kline and Don McGahn to do just that, vowing to “fight all the subpoenas.” Leading Republican legislators like Lindsey Graham and Jim Jordan encouraged Donald Trump Jr. to ignore his subpoena. Barr waved away his subpoena to give Congress the full Mueller report. Various other officials have ignored their summonses as well.
When an individual does this, the congressional committee and then the whole house of Congress (either the Senate or the House of Representatives, not both) must vote on holding the individual in contempt.
Which means that the seriousness of a subpoena depends upon the majority party in a house of Congress. If it’s not in the interest of, say, a Republican Senate to hold a Republican official in contempt after he refused to answer a subpoena in an investigation (maybe of a Republican president), then that’s that. There is no consequence for breaking the law and ignoring the order to appear or provide evidence. As long as you’re on the side of the chamber majority, you can throw the summons from the committee in the trash. (This isn’t the case with Trump, as the Democrats control the House and are thus able to convict someone of contempt, but the utter disregard for subpoenas Trump and others showed raised the question of what happens next, revealing this absurd system to this writer and others. If a chamber does convict someone of contempt, there are a few options going forward to jail or fine said person, one of which has a similar debilitating partisan wrench.) Perhaps we should construct a system, perhaps by giving committees more control over conviction and enforcement or handing things over to the judicial system earlier, where breaking the law has consequences no matter who has majority power, to prevent that behavior and allow investigations to actually operate.
[2021 Update: Trump’s attempts to overturn the free and fair election of 2020 highlighted more disturbing weaknesses on the books. First, that state legislatures still theoretically have the power to decouple electors from the voters, appointing their own electors to vote for a presidential candidate and making voting by ordinary people meaningless. Second, Congress also has the power to dismiss electors, again laying waste to the integrity of the vote. See We Just Witnessed How Democracy Ends.]