I am assuming the authenticity of the questions that Special Counsel Robert Mueller reportedly wants to ask President Trump. The questions indicate that, after a year of his own investigation and two years of FBI investigation, the prosecutor lacks evidence of a crime. Yet he seeks to probe the chief executive’s motives and thought processes regarding exercises of presidential power that were lawful, regardless of one’s view of their wisdom.
If Bob Mueller wants that kind of control over the executive branch, he should run for president. Otherwise, he is an inferior executive official who has been given a limited license — ultimately, by the chief executive — to investigate crime. If he doesn’t have an obvious crime, he has no business inventing one, much less probing his superior’s judgment. He should stand down.
The questions, reported by the New York Times, underscore that the special counsel is a pernicious institution. Trump should decline the interview. More to the point, the Justice Department should not permit Mueller to seek to interrogate the president on so paltry and presumptuous a showing.
When should a president be subject to criminal investigation?
It is a bedrock principle that no one is above the law. The Framers made clear that this includes the president. But, like everything else, bedrock principles do not exist in a vacuum. They vie with other principles.
Two competing considerations are especially significant here. First, our law-enforcement system is based on prosecutorial discretion. Under this principle, the desirability of prosecuting even a palpable violation of law must be balanced against other societal needs and desires. We trust prosecutors to perform this cost-benefit analysis with modesty about their mission and sensitivity to the disruption their investigations cause.
Second, the president is the most essential official in the world’s most consequential government. That government’s effectiveness is necessarily compromised if the president is under the cloud of an investigation. Not only are the president’s personal credibility and capability diminished; such an investigation discourages talented people from serving in an administration, further undermining good governance. The country is inexorably harmed because a suspect administration’s capacity to execute the laws and pursue the interests of the United States is undermined. Naturally, this is of little moment to rabid partisans who opposed the president’s election and object to his policy preferences. By and large, however, Americans are not rabid partisans; they want the elected president to be able to govern, regardless of which party is in charge.
Still, the president cannot be above the law. Executive powers are too awesome to abide presidential immunity from the laws and the limits on those powers. So how do we police the president while minimizing the damage that an investigation of the president can do to the country? We acknowledge that we are willing to endure this damage, but only if there is strong evidence that the president is guilty of a serious crime or abuse of power.
A president should not be subjected to prosecutorial scrutiny over poor judgment, venality, bad taste, or policy disputes. Absent concrete evidence that the president has committed a serious crime, the checks on the president should be Congress and the ballot box — and the civil courts, to the extent that individuals are harmed by abusive executive action. Otherwise, a special-counsel investigation — especially one staffed by the president’s political opponents — is apt to become a thinly veiled political scheme, enabling the losers to relitigate the election and obstruct the president from pursuing the agenda on which he ran.
That is what we are now witnessing.
Pretextual appointment of the special counsel
Robert Mueller was appointed special counsel for two reasons: (1) ostensibly to take over a counterintelligence probe; (2) in reality, as a cave-in to (mostly) Democratic caviling over Trump’s firing of FBI director James Comey — which was lawful but incompetently executed. Democrats contended that Comey’s dismissal, in conjunction with Comey’s leak of Trump’s alleged pressure to drop the FBI’s investigation of Michael Flynn, warranted a criminal-obstruction probe. That is, the pretext of obstruction was added to “Russia-gate,” the already-existing pretext for carping about the purported need for a special counsel.
Neither of these reasons was a valid basis for a special-counsel investigation.
Russia’s effort plainly warranted a counterintelligence investigation. But reliance on that necessity as a rationale to appoint a special counsel was a subterfuge.
As we have repeatedly noted, a counterintelligence investigation is not a criminal investigation. To the extent it has a “subject,” it is a foreign power that threatens the United States, not an American believed to have violated the law. A counterintelligence investigation aims to gather information about America’s adversaries, not build a courtroom prosecution. For these (and other reasons), such investigations are classified and the Justice Department does not assign prosecutors to them, as it does to criminal cases. Counterintelligence is not lawyer work; it is the work of trained intelligence officers and analysts. It is not enough to say that Justice Department regulations do not authorize the appointment of a special counsel for a counterintelligence probe. The point is that counterintelligence is not prosecution and is therefore not a mission for a prosecutor.
Foreign efforts to meddle in our elections are nothing new, but they are not to be taken lightly. Russia’s effort plainly warranted a counterintelligence investigation. But reliance on that necessity as a rationale to appoint a special counsel — a lawyer independent of the executive branch, who uses the president’s executive power to investigate the president — was a subterfuge. (Because of Deputy Attorney General Rod Rosenstein’s passivity, Mueller is de facto independent, even though he is technically Rosenstein’s subordinate.)
Prior to Comey’s firing, Democrat demands for a “Russia-gate” special counsel were rebuffed because they were nakedly political. Even if one accepts the dubious premise that Trump materially benefited from Kremlin interference in the election, there was no known credible evidence that he or his campaign committed a crime in that connection. If there had been such evidence, no one would ever have mentioned a counterintelligence investigation; they would have said a special counsel was being appointed to investigate, say, a hacking conspiracy — an actual violation of federal criminal law.
The Democrats did not want a special counsel in order to investigate a crime; they wanted a special counsel (a) to promote a political narrative that Hillary Clinton lost because of something other than her lack of appeal and (b) to frustrate Trump’s ability to govern — to mollify their “Resist!” base, to stop Trump from implementing policies they oppose, and to enhance their electoral hopes in the 2018 and 2020 cycles.
As for the second purported basis for Mueller’s appointment, the crime of obstruction, it cannot be established by lawful exercises of executive prerogatives. A president, of course, may not subvert an investigation by unlawful actions — e.g., by conspiring to suborn perjury or bribe witnesses (cf. Clinton, Nixon). Illegal acts could amount to actionable obstruction. But the president’s dismissal of subordinate executive officials (such as the FBI director), and his exercise of prosecutorial discretion (by merely weighing in on whether a person — here, Flynn — deserves to be investigated), are constitutional acts that are not judicially reviewable. Executive prerogatives that are not subject to judicial review may not be subjected to judicial review by indirection, under the guise of a prosecution.
If Congress believes that Trump has committed impeachable offenses, it is free to open an impeachment inquiry. Mueller is not Congress.
This is not to say that lawful presidential actions are beyond reproach. Acts that do not transgress the criminal law may nevertheless be despicable. It is not a crime, for example, for a president to use the Oval Office for extramarital trysts with an intern, or to lie to the public about people being able to keep their health insurance. Nor am I contending that lawful presidential actions are unreviewable: The president can be impeached — just as the president has plenary power to fire an executive subordinate, Congress has plenary power to determine what constitutes high crimes and misdemeanors. If Congress believes that the president’s lawful exercise of an executive prerogative was corruptly motivated, Congress may remove the president. If, for example, there was a concrete basis to suspect the president of a crime, and the president pardoned his accomplices in return for their silence, the pardons would stand but Congress could impeach the president for abusing his power to conceal his misconduct.
But impeachment is not prosecution. If Congress believes that Trump has committed impeachable offenses, it is free to open an impeachment inquiry. Mueller is not Congress. He does not report to Congress. He is a subordinate officer of the executive branch whose job is to investigate and (if merited) prosecute crimes specified by his Justice Department superiors. A special counsel is not supposed to be Congress’s lawyer for the purpose of investigating non-crimes that might nevertheless constitute impeachable abuses of power.
The corrupt-motive theory is legally and factually specious
The list of questions elucidates that Mueller is pursuing the legally suspect theory that legitimate exercises of presidential prerogatives can become prosecutable obstruction crimes if undertaken with an arguably corrupt motive. This theory is specious on at least two grounds.
First, it would empower a subordinate executive official (an unelected bureaucrat who serves at the president’s pleasure) to second-guess the chief executive’s every action and judgment — not just to investigate a patent, serious crime but to question what the president was thinking even when his actions were within his constitutional authority. The president is answerable to peer branches and to voters, but not down his chain of command. If an order is lawful, it is not the captain’s place to question the general’s motives.
Second, the corrupt-motive theory is factually meritless as applied to Trump. Whatever pressure Trump may have brought to bear regarding Flynn’s investigation, it had zero impact. Comey has testified that the FBI disregarded Trump’s comments. The Flynn investigation proceeded without a hitch, and Mueller ultimately charged and convicted him. Trump could have ordered the investigation to be shut down, but he let it continue.
A president should not be under investigation in the absence of an obvious crime serious enough to implicate impeachment. The stakes for the nation’s effective governance are too high.
As for the Russia investigation, it has proceeded apace. Comey’s firing had no effect on the FBI’s capacity to investigate. Moreover, the evidence is that Trump was not trying to impede the Russia investigation. To the contrary, the president simply wanted the FBI director to state publicly what he was assuring Trump privately: that Trump was not suspected of wrongdoing. This was hardly an unreasonable desire given that (a) in the Clinton-emails investigation, Comey took it upon himself to publicize the FBI’s determination that Hillary Clinton should not face prosecution, and (b) after repeatedly telling Trump he was not a suspect, Comey gratuitously created the public impression that Trump was a suspect by making an extraordinary announcement (in House testimony on March 20, 2017) that both revealed the existence of the Russia investigation and suggested Trump-campaign “coordination” in Russian espionage.
Not so fast, argue Trump’s antagonists: To be obstruction, an action need not succeed in corruptly influencing an investigation; it need only endeavor to do so.
This returns us to where we began: A president should not be under investigation in the absence of an obvious crime serious enough to implicate impeachment. The stakes for the nation’s effective governance are too high. Here, we do not have real obstruction. We have, at most, a politicized, hyper-technical claim of obstruction that rests on a suspect legal theory and a dearth of evidence that anyone was impeded in the slightest. Those are frivolous grounds for an investigation that compromises the president’s capacity to govern. The criminal law inquires into intent when actions patently violate criminal statutes; its purpose is not to manufacture crime by speculating about the intent behind apparently lawful actions.
Justice Department indifference
I am not a Trump fanboy. The administration’s conflicting explanations for Comey’s firing, which Mueller wants to inquire about, were an embarrassment — and the president’s badmouthing of the former director for the consumption of Kremlin emissaries was a disgrace. Trump’s Twitter tirades demanding investigations inject politics into law enforcement and undermine the administration of justice. His conception of the loyalty he is entitled to demand from law-enforcement officials is skewed — his citation of Eric Holder as a model attorney general (the only AG ever held in contempt of Congress) is repugnant. His orchestration of Donald Trump Jr.’s misleading statements to the Times (and thus to the public) regarding the Trump Tower meeting with a Kremlin-tied lawyer was unseemly.
None of this, however, is a basis for criminal prosecution. Being inconsolably upset about the outcome of the 2016 election does not entitle Democrats to an Oval Office minder with subpoena power. The actions and intentions Mueller seeks to probe are bases for political opposition to Trump, not prosecution. If you think his derelictions outweigh the positive policy outcomes of his presidency, then work to defeat him in the coming election cycles. But that is not prosecutor work.
Trump would be foolish to answer questions from Mueller, who has made a habit of turning witness interviews into false-statements prosecutions. More important, absent concrete evidence of his complicity in a serious crime, a president should not be put in the position of being pressured to answer a prosecutor’s questions. When Trump complains that the Obama Justice Department would never have permitted President Obama to be treated this way, he is right.
Put the president aside for a second. A Justice Department prosecutor would not be permitted to subpoena, say, a journalist or a lawyer, unless doing so was vital to the investigation of a serious crime — to the acquisition of critical information that was unavailable from any alternative source. The firewall that would prevent a heedless prosecutor from running roughshod over free-press principles or the attorney–client privilege is Justice Department leadership. It is astonishing that current Justice Department leadership apparently believes that the president of the United States, despite his responsibilities for our governance and security, is entitled to less deference.
Unless Mueller can demonstrate that a serious crime has been committed, that Trump was complicit in it, and that Trump is in possession of evidence that is essential to the prosecution, Rosenstein should bar him from seeking an interview, let alone issuing a subpoena demanding grand-jury testimony. This is not merely about protecting Trump; it is about protecting the office of the presidency.