The Corner

Politics & Policy

Sessions Hearing: A Theater Production of Constitutional Illiteracy

It is very frustrating watching Attorney General Sessions testify before the House Judiciary Committee. There was just 5 minutes of complete constitutional illiteracy from Congressman Ted Deutch (D., Fla.). He does not seem to understand that the president runs the executive branch; that the prosecutorial power wielded by the executive branch is the president’s power, and therefore it is not prosecutable obstruction offense if the president involves himself in an investigation (even if it is a foolish or abusive thing to do); that the special prosecutor and his staff are officers of the executive branch who serve at the president’s pleasure and may be dismissed by the president at any time; and that the president’s pardon power is absolute when it comes to federal offenses – the president may not pardon an offense that has not occurred yet, but he has the authority to pardon his family members, his friends, his campaign staffers, et al., for suspected federal crimes, and there is no requirement that these crimes have been formally charged. (See, e.g., Carter’s mass pardon of Vietnam draft evaders.)

Rep. Deutch acted as if he was ripe dead certain that the Constitution was on his side as he blithely misstated each of these propositions. His apparent positions are that if he disapproves of the president’s behavior, that behavior must be unconstitutional, and that the Justice Department and FBI are a separate branch of government outside presidential control.

There is no power a president has that cannot be abused. If a president meddles in investigations, fires prosecutors who are probing his own conduct, or exercises his pardon power in a corrupt manner, Congress may impeach that president – and if the abuse of power is sufficiently egregious, Congress should impeach. That is the decisive check that Rep. Deutch and the rest of Congress have if they disapprove of the president’s conduct.

Finally, because the Justice Department, and Attorney General Sessions in particular, acceded to the Democrats’ demands, Sessions sweepingly recused himself from investigations related to Russia and the 2016 election, and a special counsel was appointed. So why are Committee Democrats asking Sessions questions about what should happen in investigations from which he is recused? The attorney general loses either way: If he declines to answer, Democrats suggest he is hiding something; if he were to answer, they would say he is violating the recusal.

In a court hearing, a judge would not allow a witness to be badgered this way. These committee hearings are political theater, not fact-finding.

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