Predicting the future isn’t something I make a habit of. It is a perilous activity, always involving a strong chance of being wrong and looking the fool. Yet sometimes, here and there, conditions unfold around us in a way that gives one enough confidence to hazard a prediction. I believe that Bernie Sanders will win Iowa today.

First, consider that Bernie is at the top of the polls. Polls aren’t always reliable predictors, and he’s neck-and-neck with an opponent in some of them, but it’s a good sign.

To any sensible person, the Electoral College is a severely flawed method of electing our president. Most importantly, it is a system in which the less popular candidate — the person with fewer votes — can win the White House. That absurdity would be enough to throw the Electoral College out and simply use a popular vote to determine the winner. Yet there is more.

It is a system where your vote becomes meaningless, giving no aid to your chosen candidate, if you’re in your state’s political minority; where small states have disproportionate power to determine the winner; where white voters have disproportionate decision-making power compared to voters of color; and where electors, who are supposed to represent the majority of voters in each state, can change their minds and vote for whomever they please. Not even its origins are pure, as slavery and the desire to keep voting power away from ordinary people were factors in its design.

Let’s consider these problems in detail. We’ll also look at the threadbare attempts to justify them.

The votes of the political minority become worthless, leading to a victor with fewer votes than the loser

When we vote in presidential elections, we’re not actually voting for the candidates. We’re voting on whether to award decision-making power to Democratic or Republican electors. 538 people will cast their votes and the candidate who receives a majority of 270 votes will win. The electors are chosen by the political parties at state conventions, through committees, or by the presidential candidates. It depends on the state. The electors could be anyone, but are usually involved with the parties or are close allies. In 2016, for instance, electors included Bill Clinton and Donald Trump, Jr. Since they are chosen for their loyalty, they typically (though not always, as we will see) vote for the party that chose them.

The central problem with this system is that most all states are all-or-nothing when electors are awarded. (Only a couple states, Maine and Nebraska, have acted on this unfairness and divided up electors based on their popular votes.) As a candidate, winning by a single citizen vote grants you all the electors from the state. 

Imagine you live in Missouri. Let’s say in 2020 you vote Republican, but the Democratic candidate wins the state; the majority of Missourians voted Blue. All of Missouri’s 10 electors are then awarded to the Democratic candidate. When that happens, your vote does absolutely nothing to help your chosen candidate win the White House. It has no value. Only the votes of the political majority in the state influence who wins, by securing electors. It’s as if you never voted at all — it might as well have been 100% of Missourians voting Blue. As a Republican, wouldn’t you rather have your vote matter as much as all the Democratic votes in Missouri? For instance, 1 million Republican votes pushing the Republican candidate toward victory alongside the, say, 1.5 million Democratic votes pushing the Democratic candidate forward? Versus zero electors for the Republican candidate and 10 electors for the Democrat?

In terms of real contribution to a candidate’s victory, the outcomes can be broken down, and compared to a popular vote, in this way:

State Electoral College victor: contribution (electors)
State Electoral College loser: no contribution (no electors)

State popular vote victor: contribution (votes)
State popular vote loser: contribution (votes)

Under a popular vote, however, your vote won’t become meaningless if you’re in the political minority in your state. It will offer an actual contribution to your favored candidate. It will be worth the same as the vote of someone in the political majority. The Electoral College simply does not award equal value to each vote (see more examples below), whereas the popular vote does, by allowing the votes of the political minority to influence the final outcome. That’s better for voters, as it gives votes equal power. It’s also better for candidates, as the loser in each state would actually get something for his or her efforts. He or she would keep the earned votes, moving forward in his or her popular vote count. Instead of getting zero electors — no progress at all.

But why, one may ask, does this really matter? When it comes to determining who wins a state and gets its electors, all votes are of equal value. The majority wins, earning the right to give all the electors to its chosen candidate. How exactly is this unfair?

It’s unfair because, when all the states operate under such a system, it can lead to the candidate with fewer votes winning the White House. It’s a winner-take-all distribution of electors, each state’s political minority votes are ignored — but those votes can add up. 66 million Americans may choose the politician you support, but the other candidate may win with just 63 million votes. That’s what happened in 2016. It also happened in the race of 2000, as well as in 1876 and 1888. It simply isn’t fair or just for a candidate with fewer votes to win. It is mathematically possible, in fact, to win just 21.8% of the popular vote and win the presidency. While very unlikely, it is possible. That would mean, for example, a winner with 28 million votes and a loser with 101 million! This is absurd and unfair on its face. The candidate with the most votes should be the victor, as is the case with every other political race in the United States, and as is standard practice among the majority of the world’s democracies.

The lack of fairness and unequal value of citizen votes go deeper, however.

Small states and white power

Under the Electoral College, your vote is worth less in big states. For instance, Texas, with 28.7 million people and 38 electors, has one elector for every 755,000 people. But Wyoming, with 578,000 people and 3 electors, has one elector for every 193,000 people. In other words, each Wyoming voter has a bigger influence over who wins the presidency than each Texas voter. 4% of the U.S. population, for instance, in small states, has 8% of the electors. Why not 4%, to keep votes equal? (For those who think all this was the intent of the Founders, to give more power to smaller states, we’ll address that later on.)

To make things even, Texas would need many more electors. As would other big states. You have to look at changing population data and frequently adjust electors, as the government is supposed to do based on the census and House representation — it just doesn’t do it very well. It would be better to do away with the Electoral College entirely, because under a popular vote the vote of someone from Wyoming would be precisely equal to the vote of a Texan. Each would be one vote out of the 130 million or so cast. No adjustments needed.

It also just so happens that less populous states tend to be very white, and more populous states more diverse, meaning disproportionate white decision-making power overall.

Relatedly, it’s important to note that the political minority in each state, which will become inconsequential to the presidential race, is sometimes dominated by racial minorities, or at least most voters of color will belong to it. As Bob Wing writes, because “in almost every election white Republicans out-vote [blacks, most all Democrats] in every Southern state and every border state except Maryland,” the “Electoral College result was the same as if African Americans in the South had not voted at all.”

Faithless electors

After state residents vote for electors, the electors can essentially vote for whomever they want, in many states at least. “There are 32 states (plus the District of Columbia) that require electors to vote for a pledged candidate. Most of those states (19 plus DC) nonetheless do not provide for any penalty or any mechanism to prevent the deviant vote from counting as cast. Four states provide a penalty of some sort for a deviant vote, and 11 states provide for the vote to be canceled and the elector replaced…”

Now, electors are chosen specifically because of their loyalty, and “faithless electors” are extremely rare, but that doesn’t mean they will always vote for the candidate you elected them to vote for. There have been 85 electors in U.S. history that abstained or changed their vote on a whim. Sometimes for racist reasons, on accident, etc. Even more changed their votes after a candidate died — perhaps the voters would have liked to select another option themselves. Even if rare, all this should not be possible or legal. It is yet another way the Electoral College has built-in unfairness — imagine the will of a state’s political majority being ignored.

(All this used to be worse, in fact. Early on, some state legislatures appointed electors, meaning whatever party controlled a legislature simply selected people who would pick its favored presidential candidate. How voters cast their ballots did not matter.)

* * *

Won’t a popular vote give too much power to big states and cities?

Let’s turn now to the arguments against a popular vote, usually heard from conservatives. A common one is that big states, or big cities, will “have too much power.” Rural areas and less populous states and towns will supposedly have less.

This misunderstands power. States don’t vote. Cities don’t vote. People do. If we’re speaking solely about power, about influence, where you live does not matter. The vote of someone in Eudora, Kansas, is worth the same as someone in New York, New York.

This argument is typically posited by those who think that because some big, populous states like California and New York are liberal, this will mean liberal rule. (Conservative Texas, the second-most populous state, and sometimes-conservative swing states like Florida [third-most populous] and Pennsylvania [fifth-most populous] are ignored.) Likewise, because a majority of Americans today live in cities, and cities tend to be more liberal than small towns, this will result in the same. The concern for rural America and small states is really a concern for Republican power.

But obviously, in a direct election each person’s vote is of equal weight and importance, regardless and independent of where you live. 63% of Americans live in cities, so it is true that most voters will be living and voting in cities, but it cannot be said the small town voter has a weaker voice than the city dweller. Their votes have identical sway over who will be president. In the same way, a voter in a populous coastal state has no more influence than one in Arkansas.

No conservative looks with dismay at the direct election of his Democratic governor or congresswoman and says, “She only won because the small towns don’t have a voice. We have to find a way to diminish the power of the big cities!” No one complains that X area has too many people and too many liberals and argues some system should fix this. No one cries, “Tyranny of the majority! Mob rule!” They say, “She got the most votes, seems fair.” Why? Because one understands that the vote of the rural citizen is worth the same as the vote of an urban citizen, but if there happens to be more people living in cities in your state, or if there are more liberals in your state, so be it. That’s the freedom to live where you wish, believe what you wish, and have a vote worth the same as everyone else’s.

Think about the popular vote in past elections. About half of Americans vote Republican, about half vote Democrat. One candidate gets a few hundred thousand or few million more. It will be exactly the same if the popular vote determined the winner rather than the Electoral College — where you live is irrelevant. What matters is the final vote tally.

It’s not enough to simply complain that the United States is too liberal. And therefore we must preserve the Electoral College. That’s really what this argument boils down to. It’s not an argument at all. Unfair structures can’t be justified because they serve one political party. Whoever can win the most American votes should be president, no matter what party they come from.

But won’t candidates only pander to big states and cities?

This is a different question, and it has merit. It is true that where candidates campaign will change with the implementation of a popular vote. Conservatives warn that candidates will spend most of their time in the big cities and big states, and ignore rural places. This is likely true, as candidates (of both parties) will want to reach as many voters as possible in the time they have to garner support.

Yet this carries no weight as an argument against a popular vote, because the Electoral College has a very similar problem. Candidates focus their attention on swing states.

There’s a reason Democrats don’t typically campaign very hard in conservative Texas and Republicans don’t campaign hard in liberal California. Instead, they campaign in states that are more evenly divided ideologically, states that sometimes go Blue and sometimes go Red. They focus also on swing states with a decent number of electors. The majority of campaign events are in just six states. Unless you live in one of these places, like Ohio, Florida, or Pennsylvania, your vote isn’t as vital to victory and your state won’t get as much pandering. The voters in swing states are vastly more important, their votes much more valuable than elsewhere.

How candidates focusing on a handful of swing states might be so much better than candidates focusing on more populous areas is never explained by Electoral College supporters. It seems like a fair trade, but with a popular vote we also get the candidate with the most support always winning, votes of equal worth, and no higher-ups to ignore the will of the people.

However, with a significant number of Americans still living outside big cities, attention will likely still be paid to rural voters — especially, one might assume, by the Republican candidate. Nearly 40% of the nation living in small towns and small states isn’t something wisely ignored. Wherever the parties shift most of their attention, there is every reason to think Blue candidates will want to solidify their win by courting Blue voters in small towns and states, and Red candidates will want to ensure theirs by courting Red voters in big cities and states. Even if the rural voting bloc didn’t matter and couldn’t sway the election (it would and could), one might ask how a handful of big states and cities alone determining the outcome of the election is so much worse than a few swing states doing the same in the Electoral College system.

Likewise, the fear that a president, plotting reelection, will better serve the interests of big states and cities seems about as reasonable as fear that he or she would better serve the interests of the swing states today. One is hardly riskier than the other.

But didn’t the Founders see good reason for the Electoral College?

First, it’s important to note that invoking the Founding Fathers doesn’t automatically justified flawed governmental systems. The Founders were not perfect, and many of the policies and institutions they decreed in the Constitution are now gone.

Even before the Constitution, the Founders’ Articles of Confederation were scrapped after just seven years. Later, the Twelfth Amendment got rid of a system where the losing presidential candidate automatically became vice president — a reform of the Electoral College. Our senators were elected by the state legislatures, not we the people, until 1913 (Amendment 17 overturned clauses from Article 1, Section 3 of the Constitution). Only in 1856 did the last state, North Carolina, do away with property requirements to vote for members of the House of Representatives, allowing the poor to participate. The Three-Fifths Compromise (the Enumeration Clause of the Constitution), which valued slaves less than full people for political representation purposes, is gone, and today people of color, women, and people without property can vote thanks to various amendments. There were no term limits for the president until 1951 (Amendment 22) — apparently an executive without term limits didn’t give the Founders nightmares of tyranny.

The Founders were very concerned about keeping political power away from ordinary people, who might take away their riches and privileges. They wanted the wealthy few, like themselves, to make the decisions. See How the Founding Fathers Protected Their Own Wealth and Power.

The Electoral College, at its heart, was a compromise between Congress selecting the president and the citizenry doing so. The people would choose the people to choose the president. Alexander Hamilton wrote that the “sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” He thought “a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”

Yet the Founders did not anticipate that states would pass winner-take-all elector policies, and some wanted it abolished. The Constitution and its writers did not establish such a mechanism. States did, and only after the Constitution, which established the Electoral College, was written. In 1789, only three states had such laws, according to the Institute for Research on Presidential Elections. It wasn’t until 1836 that every state (save one, which held out until after the Civil War) adopted a winner-take-all law; they sought more attention from candidates by offering all electors to the victor, they wanted their chosen sons to win more electors, and so forth. Before (and alongside) the winner-take-all laws, states were divided into districts and the people in each district would elect an elector (meaning a state’s electors could be divided up among candidates). Alternatively, state legislatures would choose the electors, meaning citizens did not vote for the president in any way, even indirectly! James Madison wrote that “the district mode was mostly, if not exclusively in view when the Constitution was framed and adopted; & was exchanged for the general ticket [winner-take-all] & the legislative election” later on. He suggested a Constitutional amendment (“The election of Presidential Electors by districts, is an amendment very proper to be brought forward…”) and Hamilton drafted it.

Still, among Founders and states, it was an anti-democratic era. Some Americans prefer more democratic systems, and don’t cling to tradition — especially tradition as awful and unfair as the Electoral College — for its own sake. Some want positive changes to the way government functions and broadened democratic participation, to improve upon and make better what the Founders started, as we have so many times before.

Now, it’s often posited that the Founding Fathers established the Electoral College to make sure small states had more power to determine who won the White House. As we saw above, votes in smaller states are worth more than in big ones.

Even if the argument that “we need the Electoral College so small states can actually help choose the president” made sense in a bygone era where people viewed themselves as Virginians or New Yorkers, not Americans (but rather as part of an alliance called the United States), it makes no sense today. People now see themselves as simply Americans — as American citizens together choosing an American president. Why should where you live determine the power of your vote? Why not simply have everyone’s vote be equal?

More significantly, it cannot be said that strengthening smaller states was a serious concern to the Founders at the Constitutional Convention. They seemed to accept that smaller states would simply have fewer voters and thus less influence. Legal historian Paul Finkleman writes that

in all the debates over the executive at the Constitutional Convention, this issue [of giving more power to small states] never came up. Indeed, the opposite argument received more attention. At one point the Convention considered allowing the state governors to choose the president but backed away from this in part because it would allow the small states to choose one of their own.

In other words, they weren’t looking out for the little guy. Political scientist George C. Edwards III calls this whole idea a “myth,” stressing: “Remember what the country looked like in 1787: The important division was between states that relied on slavery and those that didn’t, not between large and small states.”

Slavery’s influence

The Electoral College is also an echo of white supremacy and slavery.

As the Constitution was formed in the late 1780s, Southern politicians and slave-owners at the Convention had a problem: Northerners were going to get more seats in the House of Representatives (which were to be determined by population) if blacks weren’t counted as people. Southern states had sizable populations, but large portions were disenfranchised slaves and freemen (South Carolina, for instance, was nearly 50% black).

This prompted slave-owners, most of whom considered blacks by nature somewhere between animals and whites, to push for slaves to be counted as fully human for political purposes. They needed blacks for greater representative power for Southern states. Northern states, also seeking an advantaged position, opposed counting slaves as people. This odd reversal brought about the Three-Fifths Compromise most of us know, which determined an African American would be worth three-fifths of a person.

The Electoral College was largely a solution to the same problem. True, as we saw, it served to keep power out of the hands of ordinary people and in the hands of the elites, but race and slavery unquestionably influenced its inception. As the Electoral College Primer put it, Southerners feared “the loss in relative influence of the South because of its large nonvoting slave population.” They were afraid the direct election of the president would put them at a numerical disadvantage. To put it bluntly, Southerners were upset their states didn’t have more white people. A popular vote had to be avoided.

For example, Hugh Williamson of North Carolina remarked at the Convention, during debate on a popular election of the president: “The people will be sure to vote for some man in their own State, and the largest State will be sure to succede [sic]. This will not be Virga. however. Her slaves will have no suffrage.” Williamson saw that states with high populations had an advantage in choosing the president. But a great number of people in Virginia were slaves. Would this mean that Virginia and other slave states didn’t have the numbers of whites to affect the presidential election as much as the large Northern states?

The writer of the Constitution, slave-owner and future American president James Madison, thought so. He said that

There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty…

The question for Southerners was: How could one make the total population count for something, even though much of the population couldn’t vote? How could black bodies be used to increase Southern political power? Counting slaves helped put more Southerners in the House of Representatives, and now counting them in the apportionment of electors would help put more Southerners in the White House.

Thus, Southerners pushed for the Electoral College. The number of electors would be based on how many members of Congress each state possessed — which recall was affected by counting a black American as three-fifths of a person. Each state would have one elector per representative in the House, plus two for the state’s two senators (today we have 435 + 100 + 3 for D.C. = 538). In this way, the number of electors was still based on population (not the whole population, though, as blacks were not counted as full persons), even though a massive part of the America population in 1787 could not vote. The greater a state’s population, the more House reps it had, and thus the more electors it had. Southern electoral power was secure.

This worked out pretty well for the racists. “For 32 of the Constitution’s first 36 years, a white slaveholding Virginian occupied the presidency,” notes Akhil Reed Amar. The advantage didn’t go unnoticed. Massachusetts congressman Samuel Thatcher complained in 1803, “The representation of slaves adds thirteen members to this House in the present Congress, and eighteen Electors of President and Vice President at the next election.”

Tyrants and imbeciles

At times, it’s suggested that the electors serve an important function: if the people select a dangerous or unqualified candidate — like an authoritarian or a fool — to be the party nominee, the electors can pick someone else and save the nation. Hamilton said, “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Obviously, looking at Donald Trump, the Electoral College is just as likely to put an immoral doofus in the White House than keep one out. Trump may not fit that description to you, but some day a candidate may come along who does. And since the electors are chosen for their loyalty, they are unlikely to stop such a candidate, even if they have the power to be faithless. We might as well simply let the people decide.

It is a strange thing indeed that some people insist a popular vote will lead to dictatorship, ignoring the majority of the world’s democracies that directly elect their executive officer. They have not plunged into totalitarianism. Popular vote simply doesn’t get rid of checks and balances, co-equal branches, a constitution, the rule of law, and other aspects of free societies. These things are not incompatible.

France has had direct elections since 1965 (de Gaulle). Finland since 1994 (Ahtisaari). Portugal since 1918 (Pais). Poland since 1990 (Wałęsa). Why aren’t these nations run by despots by now? Why do even conservative institutes rank nations like Ireland, Finland, and Austria higher up on a “Human Freedom Index” than the United States? How is this possible, if direct elections of the executive lead to tyranny?

There are many factors that cause dictatorship and ruin, but simply giving the White House to whomever gets the most votes is not necessarily one of them.

Modern motives

We close by stating the obvious. There remains strong support for the Electoral College among conservatives because it has recently aided Republican candidates like Bush (2000) and Trump (2016). If the GOP lost presidential elections due to the Electoral College after winning the popular vote, like the other party does, they’d perhaps see its unfair nature.

The popular vote, in an increasingly diverse, liberal country, doesn’t serve conservative interests. Republicans have won the popular vote just once since and including the 1992 election. Conservatives are worried that if the Electoral College vanishes and each citizen has a vote of equal power, their days are numbered. Better to preserve an outdated, anti-democratic system than benefits you than reform your platform and policies to change people’s minds about you and strengthen your support. True, the popular vote may serve Democratic interests. Fairness serves Democratic interests. But, unlike unfairness, which Republicans seek to preserve, fairness is what’s right. Giving the candidate with the most votes the presidency is what’s right.

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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 (and pardons themselves are ruinous)

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.”

[Update: In early 2021, Trump spent his last days in office pardoning and granting clemency to corrupt allies and associates, those in prison for fraud, lying to the authorities, threatening witnesses, defying court orders, obstructing justice, and so on. Included were Steve Bannon, Roger Stone, Paul Manafort, Mike Flynn, George Papadopoulos, and more. Trump later promised that in a future term he would let more criminals back onto the streets: the January 6 Capitol rioters who assaulted police and broke into Congress to stop election proceedings, resulting in multiple deaths. The presidential pardon ensures that crimes, corruption, and attacks on democracy (one day perhaps successful) will simply go unpunished, encouraging further similar acts.]

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.

[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.]

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