Breaking: For seven consecutive months, President Trump has not fired Special Counsel Robert Mueller.
This qualifies as news in the context of last week’s New York Times blockbuster story about what turned out to be a non-event: Six months ago, Trump considered cashiering Mueller but met stiff resistance from the White House counsel and never took any serious steps to follow through.
This has, again, focused attention on the effort by Democrats and a few Republicans who are proposing legislation to bar the president from dismissing the prosecutor, who is an executive-branch subordinate. These lawmakers clearly missed school the day the separation of powers was taught.
As even the Times report acknowledges, the tack taken by Trump’s team in recent months has been cooperation with the investigation. This was after an initial confrontational pose that never manifested itself in obstructive conduct. The White House’s early-stage frustration was understandable. In appointing Mueller, the Justice Department imposed no real limits on the investigation. Former FBI director James Comey had told the president multiple times that he was not suspected of wrongdoing in connection with Russia’s interference in the election; yet, as soon as Mueller was appointed, the focus of the investigation appeared to shift from Russia to obstruction — based mainly on the firing of Comey.
As the Nixon and Clinton precedents teach, there is no doubt that a president who engages in criminal conduct to impede an investigation — e.g., bribery of witnesses, suborning of perjury — is vulnerable to impeachment and eventual prosecution for obstruction of justice. It is highly doubtful that an obstruction charge would arise from lawful executive conduct — such as firing a subordinate, as in the case of Comey, or weighing in on the merits of prosecuting a former subordinate, as in the case of Michael Flynn. That we may judge these actions foolish is a separate matter from their legal propriety, which is incontestable.
It is, moreover, difficult to make an obstruction case when nothing was obstructed. Trump did not order the investigations closed, though he could have. Flynn was ultimately charged. And far from terminating the Russia investigation, Trump told Comey it would be useful to find out if some of his “satellite” subordinates had done something wrong. The president’s frustration appears to have been not so much the investigation as Comey’s refusal to state publicly what he was telling Trump privately: that Trump was not a suspect in the investigation.
If the president were to fire the prosecutor under circumstances that were clearly corrupt — say, it emerged he was trying to hide a conspiracy with the Russians — Congress’s remedy would be to impeach and remove him. Even if this were unsuccessful, the political damage to the president and Republicans would be immense, paralyzing Trump’s government and making major Democratic electoral gains virtually inevitable.
That is how it works in our constitutional order. Prosecution is an executive power. Under Article II, all executive power belongs to the president, which is why the chief executive is empowered to remove all subordinate executive officers without cause. Congress has no power to diminish the executive’s constitutional authority by statute. The courts have no power to interfere with the executive’s constitutional prerogatives, such as terminating underlings or investigations.
Thus, a legislative scheme to bar the president from removing the special counsel absent a cause proved to the satisfaction of a federal court would be blatantly unconstitutional. Trump’s opponents would effectively be reinstating the baleful independent-counsel statute that was permitted to lapse toward the end of the Clinton administration after it had crippled administrations of both parties. That would be as unwise as it would be unconstitutional.
Not to mention that there is insufficient congressional support for such a law, and Trump would never sign it. Can we move on to something more serious?