Separation of powers is paramount in our system.
If I wrote this article a week ago, I would have been dismissed as a partisan hack that had no interest in seeing the Mueller Investigation through to completion. I would have been denounced as a Trump apologist that wanted to discredit a needed investigation.
Well, Trump “won” this whole Russian Collusion argument, I am still opposed to the Mueller investigation.
I touched on the subject several times in the past, I have not covered it in
depth. The point of this article is to
layout why special counsels inhabit a constitutional grey area. Now that
Mueller has completed the investigation with no Russian collusion in sight, we
can examine the nature of the executive power in America.
II, Section 1 says, “The executive power
shall be vested in a President of the United States of America.” Similarly,
Articles I and III contain the same wording but for the legislative and
judicial power respectively. During the
Constitutional Convention, the framers had a handful of state constitutions to
look at. Some took separation of powers
so seriously that they provided explicit prohibitions against branches of
government wielding the power of another branch. I wrote about in previously in another
“We see in Federalist 47 that Madison references the Massachusetts constitution. Article XXX says “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
Why is this relevant? The entirety of the Russia investigation has been shrouded in these talking points regarding independence. Back in May, Senator Feinstein went so far as to say that the entire Department of Justice must be independent. I wrote this:
In Federal 69, Hamilton says that the executive authority is to be vested in a single magistrate.
In Federal 70, Hamilton urges for the creation of an “energetic executive.” His call for a singular and an energetic executive is premised upon the notion that “decision, activity, secrecy, and dispatch, will generally characterize the proceedings of one man in a much more eminent degree” than in cases where the executive is not singular. He posits several scenarios where this unity of command (characterized by the aforementioned qualities) is jeopardized. The first is the existence of multiple executives. The second is the existence of a single executive bogged down by dependence on another’s authority. He says “this unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him.”
Senator Feinstein wants a system where the executive cannot exercise his authority without getting permission from subordinate departments. She says that the DoJ serves the American people. She’s right. It does serve the interests of the American people because the people elected Donald Trump to serve as the executive, whose job, interestingly enough, is to enforce the law.
enforcement of law is THE executive power.
The executive power is held by one man. The idea of removing that power
and giving it to an unelected and unaccountable employee of the executive branch
raises some constitutional questions. We were repeatedly told that there would
be hell to pay if Trump ended the Mueller investigation. We were repeatedly told that firing Comey was
impermissible. Both of these assertions effectively take power that belongs to
Trump and delegate it to other individuals.
We end up with the de facto creation of a fourth branch of government
where individuals are immune from the normal political and constitutional
While the Mueller investigation is not as problematic as other instances where special counsels were appointed, the rhetoric has poisoned the well of public discourse on the subject, as it will be nearly impossible to correct this fundamental misunderstanding of separation of powers.
This misunderstanding has infected even conservative minds. It’s the idea that while Trump may have been able to fire Mueller, Trump would probably be impeached. It’s one thing to believe that this would be the reality given the democrats’ insanity, it’s another to believe that this would be a prudent political remedy for firing Mueller. If firing Mueller were an impeachable offense, then the simple exercise of Article II power would be grounds for impeachment. That is an untenable constitutional norm.
You may ask, if Trump wields all the executive power, how can the president ever be subject to investigation? There are several solutions that can address this notion of an above-the-law president. The first solution is a recent one. Congress can enact an independent counsel statute. This first option is absolutely horrendous. This goes much further in disregarding separation of powers.
January, I wrote briefly on the topic of suborning perjury and the similarities
between Trump and Clinton. In that
article, I offered some thoughts on intellectual consistency:
If you were okay with one president suborning perjury, you should be okay with it happening again.
If you were appalled by a president suborning perjury, you should be appalled again.
We can make distinctions between the two cases while not deviating from the principle that truth is a prerequisite for justice.
We can think Trump is wrong to have done this and still think the Special Counsel occupies a constitutional grey area.
We can think that Clinton was wrong and think that the Independent Counsel statute was worse than the appointment of Mueller.
And we can look to Justice Scalia’s lone dissent in Morrison v. Olson to remind us that regardless of what the executive is doing, it’s the executive’s job alone to prosecute and enforce the law. We cannot ignore separation of powers when we have a perfectly acceptable political means of remedying problems like these. We don’t need a special counsel when the legislative branch can operate WITHOUT the president (veto override) and can remove him from office (impeachment).
actually serves as a good segue into some of the other solutions, but we’ll focus
While dealing with a long forgotten dispute between the Reagan Administration and Congress, the Supreme Court got involved in interpreting a statute that existed because of Nixon and was later used against Clinton. In 1988, when Morrison was decided, Justice Scalia was the lone dissenter. In his dissent, he says, “As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation of powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that, since the statute vests some purely executive power in a person who is not the President of the United States, it is void.”
goes on to discuss the extent of the power that is deprived or delegated. Whereas the majority admits that some power
has been removed, they qualify it by saying that the executive still has
sufficient control over the executive power in question. Scalia’s simple
response is that this is not good enough.
The executive must have ALL of the executive power.
Okay so what does this have to do with our current situation? Our understanding of Mueller’s investigation is primarily colored by what the nation went through with Clinton. Conservatives are quick to loathe Clinton, and most of the time rightly so, but that loathing should not have come with an assault on separation of powers. Some of us may be inclined to think that if an investigation like Mueller’s rests on dubious constitutional grounds, then maybe congress should get involved in conjunction with the judicial branch, like it did with Clinton. Scalia’s dissent debunks that thought pretty easily.
Yet that is not the only way that Congress can get involved. As my quote above mentions, congress has other powers at its disposal. It may proceed with legislation without the president, simply excluding him from the process if he has done something objectionable and everyone in congress agrees. They can impeach him and remove him from office. They can also exercise their oversight authority. Congress was perfectly capable of investigating claims against then Judge Kavanaugh without an independent counsel. Not only that, while the tools at congress’ disposal are significantly less than that of the executive, investigations by congress can lead to the executive enforcing the law. For example, if Cohen lied to congress, he made those statements under penalty of felony. Congress can establish that the crime occurred, but the enforcement of it goes to the executive. Now you may ask, what happens when the executive refuses to prosecute? Congress can keep it in the back of its head. The constitution anticipates this and the ratification debates specifically rejected proposals that would have sapped the president’s power to pardon even traitors. But they were certain that the President could not pardon in cases of impeachment. The entire point of this is to remove individuals, including a rogue executive, from power through the constitutionally prescribed political means i.e. impeachment, and then after that they will be subject to criminal prosecution.
it doesn’t end there! If Trump is as corrupt as they claim, surely the State of
New York could investigate him. The
president only has authority in federal law enforcement. This is why it is idiotic to claim that a
powerful executive, who retains the executive power, is somehow above the
law. We saw this in Clinton’s case,
albeit a little differently. State
prosecution and civil cases are two areas that can keep the president
accountable if people worry about his control over the federal law enforcement
agencies and the DoJ.
So to recap:
- The president alone holds the executive power, that includes enforcing the law.
- The legislative and judicial branches may not wield executive power.
- The Mueller investigation and the rhetoric of its rabid supporters wanted to place executive power outside of the president’s grasp.
- Congress did this with President Clinton.
- Justice Scalia explained in the 80s why this was constitutionally repugnant.
- There are other means by which congress and the people can keep the executive accountable while the executive alone enforces the law.
In the future, we need to avoid the appointment of special counsels that beg for their independence. The DoJ is capable of investigating claims made against the executive. If congress doens’t like it, congress can exercise it’s own authority in the political sphere to bring about reform. We cannot pervert separation of powers just to put our minds at ease…we actually can’t do it for any reason.