Three questions about the Comey firing (and related matters): (1) Did POTUS have the POWER/AUTHORITY to do x? Answer: YES. (2) Did POTUS have the RIGHT to do x? Answer: It depends on whether there was corrupt intent to obstruct justice. (3) Who has the final POWER/AUTHORITY to decide whether POTUS had the RIGHT to do a particular x, and on what grounds? Answer: The U.S. Congress, not POTUS. (All of that, by the way, is in the Constitution.)
[Originally published on Twitter June 4, 2018]
(THREAD — 59 tweets) Here is all the confusion in a nutshell: Trump in one of his tweet’s today: “I have the absolute right to pardon myself.”
1/ In this tweet, Trump segues from “I have the AUTHORITY/POWER to do x” to “I have the RIGHT to do x.”
This, quite simply, is wrong.
2/ Here it is essential to distinguish not just two, but actually three very different questions.
3/
ONE: does POTUS have the POWER/AUTHORITY to do x?
TWO: does POTUS have the RIGHT to do x?
THREE: who has the POWER/AUTHORITY to decide whether POTUS has the RIGHT to do a particular x, and on what grounds?
4/ The public discourse, even with many “experts,” is getting all bollixed up on this matter, though the answers are clear and simple.
5/ As to ONE: the Constitution clearly gives POTUS the unrestricted POWER/AUTHORITY to fire anyone in the executive branch, to start or terminate any investigation or proceeding in the executive branch, and even to pardon himself (the only restriction there being impeachment).
6/ As to TWO: The fact that he has the POWER/AUTHORITY to do any of the above acts, does not mean he has the absolute or unrestricted RIGHT to do any of them. If he did, he would be above the law, and he clearly isn’t.
7/ The Constitution is very clear on this second point, because it gives Congress (the legislative branch) the POWER/AUTHORITY to IMPEACH a president (for, inter alia, “high crimes and misdemeanors,” Art II Sec 4).
8/ That clearly restricts the RIGHT of the president to do any of the aforementioned things — even though it does not deprive him of the POWER/AUTHORITY to do them.
9/ For example, Trump certainly had the POWER/AUTHORITY to fire James Comey. That power is unrestricted, even by Congress. (That means, for example, that Congress could not REINSTATE Comey as FBI Director even if it wanted to.)
10/ But whether POTUS has the RIGHT to do x depends on whether in doing x POTUS has fulfilled his sworn duty to faithfully execute the laws of the US (Art II, Sec 3, Clause 5): tinyurl.com/yctfrwcx
11/ It is up to CONGRESS to decide whether POTUS’ actions have violated the president’s sworn duty to “faithfully execute” the laws — not the president!
12/ This means that Trump’s constitutional argument that he has the absolute RIGHT to pardon himself (or whatever) is simply false. The decision about what he has the RIGHT to do (as opposed to the POWER or AUTHORITY to do) isn’t his decision to make.
13/ He can’t assert an absolute RIGHT to do x, since the Constitution grants Congress the power (indeed, the duty and obligation) to determine whether he has violated his oath of office in the matter of doing x.
14/ What Trump is arguing (through his tweets and through Giuliani) is that he has the RIGHT to do anything he wants to that he has the POWER/AUTHORITY to do under the Constitution,
15/ and that if he were to be impeached, that would be a purely POLITICAL decision on the part of Congress.
16/ (On this constitutional theory, his action, on the other hand, would amount to simply exercising his authority as President; Congress’s, on the other hand, would be POLITICAL.)
17/ But that constitutional theory is untenable.
18/ The word “right” is ordinarily used in relation to the rights of the CITIZENRY, and not to government or elected officials, so it’s not surprising that the Constitution doesn’t say or deny that the president has a right to do such and such — but it comes to the same thing.
19/ The implications of Art II, Sec 3, clause 5 are deep and far-reaching, and are enough to show the baselessness of the theory of the “unitary executive.”
20/ Proponents of that theory (like Trump now — though not during the campaign, when he vowed, if elected, to appoint a special prosecutor to investigate Hillary’s “crimes”) have held that the Muller’s appointment was unconstitutional.
21/ In light of Art II Sec 3, clause 5, that is plainly false, b/c the AG’s AUTHORITY/POWER to appoint the special counsel is established by Congressional code and statute, and Trump must see that those laws and codes are effectively executed whether he agrees with them or not.
22/ But it is important to understand that the power/authority vs. “right” distinction applies here as well.
23/ As noted above, the Constitution clearly gives POTUS the POWER/AUTHORITY to terminate the investigation (or fire anyone he needs to who is supervising Mueller, and then to fire Mueller himself) but not the RIGHT to do so.
24/ Whether he has the RIGHT to do so would depend on the details of the firing, i.e., on whether that act constituted an obstruction of justice = a failure to faithfully execute the laws, and one that rises to the level of a “high crime or misdemeanor.”
25/ Under the Constitution it is the responsibility and duty of CONGRESS to decide whether the president has obstructed justice, and whether in so doing he has committed a high crime and misdemeanor.
26/ Because it is CONGRESS’s decision, there has been a great deal of loose and misleading language in the public sphere (including on the part of some “experts”) about what kind of power the impeachment power is.
27/ For example, some have said that any decision to impeach (since it would be made by a political body) is a POLITICAL decision, and unlike a decision to INDICT, which is made by a court and is therefore a judicial or legal decision.
28/ This is a highly inaccurate and misleading way of characterizing the matter, because the Constitution (admittedly without attempting to define the terms) restricts Congress’s power (and obligation) to impeach to deciding WHETHER A HIGH CRIME OR MISDEMEANOR HAS BEEN COMMITTED.
29/ So a decision to impeach is NOT (or at least should not be) a political decision in the way a prime minister (and therefore a government) is removed and replaced in a parliamentary system like the UK’s (which by the way, doesn’t have and never has had a constitution).
30/ Unlike a parliament, Congress cannot impeach and remove a POTUS simply because at the time there is a simple majority in the House and a supermajority in the Senate
31/ that thinks that this is the thing to do POLITICALLY (something that has happened many times in countries with a parliamentary system of government.)
32/ Under the Constitution, Congress has to make that decision on the grounds that the president has so egregiously violated his oath to faithfully execute the laws that he has committed a *high crime and misdemeanor.*
33/ Assume, arguendo, that Trump pardons himself, his family, and all of his campaign associates who are subjects of the Mueller probe.
34/ Is that an obstruction of justice and failure to faithfully execute the laws that rises to the level of a high crime and misdemeanor?
35/ In answering this question, it is essential to note that this is not a POLITICAL question (like, say, a vote of no confidence in the government in the British parliament) — EVEN THOUGH THE CALL IS ONE THAT IS MADE BY A POLITICAL (LEGISLATIVE) body.
36/ So, again: would a decision by Trump to pardon himself, his family, and all of his campaign associates who are subjects of the Mueller probe be a high crime and misdemeanor?
37/ OF COURSE IT WOULD BE, because if Congress gave him a pass on that, in one stroke Trump would have moved the country from a democratic republic of laws to a “strong man” autocracy not based on laws.
38/ Though the law and constitution are perfectly clear on these questions, a lot of people are getting queasy about it —
39/ because they are beginning to doubt that this Congress (both houses of which are controlled by Republicans) would in fact declare it to BE a high crime or misdemeanor (even though it obviously would be).
40/ So maybe now is the time to address THIS question, which is the only real question in the matter.
41/ (The question whether Trump would have the power to do it is YES; the question whether he has the RIGHT to do it is NO — whatever the Congress might do or fail to do.)
42/ Would Congress let Trump get away with it?
43/ Nope. not a chance in hell.
44/ I imagine I have lost as much sleep over Trump as anyone in this country, but I haven’t lost any sleep over whether Trump might escape impeachment for an act like pardoning himself or a Saturday Night massacre that would be required to stop the Mueller inquiry.
45/ What we HAVE seen is a failure of Republicans in the House and Senate to send a clear, unequivocal signal to Trump that they would not allow him to provoke a constitutional crisis by (say) pardoning himself or perpetrating a Saturday Night massacre.
46/ That’s highly irresponsible, given everything we know about Trump, including his impulsiveness and propensity to put his own self-interest over the country or for that matter anything or anyone else.
47/ A bill has been introduced in the House that would prohibit Trump from firing Mueller, but such a law would clearly be unconstitutional.
48/ As argued at some length above, such a law would violate the Constitution, which gives POTUS the unrestricted POWER or AUTHORITY to appoint (with the consent of the Senate in some cases) or fire anyone in the executive branch.
49/ But what Congress clearly could do constitutionally (and what it should do in the present circumstances) is pass a resolution (with a simple majority + in the House and a supermajority + in the Senate)
50/ that IF Trump were (say) to fire Mueller or pardon subjects of the Mueller investigation (including himself),
THEN Congress would either appoint Mueller as an INDEPENDENT (i.e., Congressionally empowered) counsel, or even better, that it would IMPEACH him.
51/ It would be a mistake to think that because the Republican-controlled Congress has done nothing of the sort that Congress would FAIL to impeach or appoint an independent counsel IF Trump provoked a constitutional crisis.
52/ From what I can see, Republicans in Congress are gambling that they can deter Trump from provoking a constitutional crisis and ALSO avoid (unnecessarily) antagonizing and roiling up their voter base
53/ — and that they can accomplish this dual objective by sending equivocal, back channel messages to Trump rather than unequivocal ones to him and their constituencies in the form of a Congressional resolution.
54/ I think this is a mistake, and falls short of what they should be doing, but it seems pretty clear that this is what they ARE doing.
55/ And the indirect, “unofficial” back channel messaging has been clear enough.
56/ It happened just today (again) when Manu Raju asked Chuck Grassley what he thought of Trump’s claim that he could pardon himself.
Grassley’s response was terse and grim.
(He said, in effect, that Trump should fire Giuliani!)
57/ None of this means, of course, that Trump (being Trump) won’t provoke a constitutional crisis. He’s guilty, and might figure eventually that he has nothing to lose by burning the house down.
58/ But in that case, even a resolution passed by Congress like the ones mentioned above wouldn’t stop him either.
At that point, if it ever comes to that, Trump will have passed way beyond the point of reason or any normal political calculations. /END/
