Trump and the Unitary Executive By Andrew C. McCarthy
https://www.nationalreview.com/2018/04/trump-and-the-unitary-executive/It would be suicidally counterproductive for him to fire Rod Rosenstein, but the Constitution gives the president that power.
Fire Mueller. Pass a law so Trump can’t fire Mueller. Meanwhile, let’s impeach Rosenstein and Wray.
There’s a lot of dingbattery going around.
Elementary Constitutional Principles
In our system, we have a unitary executive. All executive power is vested in a single official, the president of the United States. That means subordinate executive officers do not have their own power; they are delegated to exercise the president’s power. When they act, they are, in effect, the president acting.
Let’s say you are exercising your own power, and you do something that I disagree with but that is within the bounds of reason. I have no choice but to respect the exercise of your discretion. But if you are exercising my power, which means that I am accountable for your actions, it is my way or the highway. And I don’t need a reason to dismiss you; I get to do it simply because I’d rather have somebody else exercising my power. I don’t need cause, and I don’t need to explain myself.
That is how it is with the president. It’s his power. On this, the Constitution imposes only one notable limitation: The chief executive is not permitted to hire top executive officers at will; they must be confirmed by the Senate. Once they are confirmed, though, he may fire them at will.
Prosecutorial power is executive in nature. Federal prosecutors therefore exercise the president’s power. Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller have no power of their own; they exercise President Trump’s prosecutorial power for as long as that arrangement suits President Trump. The president does not need cause to fire them. He does not need to explain any dismissal to Congress — “Gee, it’s Thursday and I feel like firing someone” is good enough.
If lawmakers believe the president is abusing his power by firing good public servants arbitrarily, they can impeach the president. Or they can try to bend the president into better behavior by cutting off funding, refusing to confirm nominees, or holding oversight hearings that embarrass the administration. Congress has these powerful political tools. But it does not have legal means to usurp the president’s constitutional power. Those powers do not come from Congress. They come from Article II. The Constitution cannot be amended by a mere statute or a regulation. Congress may not enact a law that purports to place conditions on the president’s power to dismiss subordinates who exercise his powers.
That is not to say Congress can’t try. The Framers understood that the three branches of the central government would use their different powers to check one another. They based our system on this competition, knowing full well that, on occasion, one branch or another would flex its muscles excessively, in a manner that encroached on the other branches’ powers. They gave each branch powers to fight off these usurpations.
They were men of the world, of course. They grasped that some encroachments are just posturing — preening designed to make a political point, not provoke a constitutional crisis. You see this a lot in massive pieces of legislation featuring stray provisions in which Congress purports to direct the president’s exercise of plenary executive powers. Typically, presidents sign these monstrosities because most of what is in them is necessary if the government is to function; it would not make practical sense to veto — in effect, to shut the government down — over a few trifling congressional chest-thumps. Instead, presidents append signing statements, noting constitutional objections to this or that congressional overreach. Both sides then retreat to their respective corners having made their point. Sensible people do not want a constitutional brawl if we can get along without one, so it’s much ado about nothing.
Another way presidents avoid such brawls is by putting up with encroachments that they can live with . . . until such time as they can’t. The War Powers Resolution, enacted over Richard Nixon’s veto, is a prime example. It is unconstitutional and has no real teeth. Yet presidents often comply with its terms while caveating that they need not do so. When it’s expedient, presidents ignore its terms, at which point Congress grouses but does nothing — when push comes to shove, lawmakers don’t want to be accountable for the risks of the battlefield.
It is commonly said that the Framers wanted “energy in the executive.” That is, they vested the awesome Article II powers in a single official because they knew the security of the nation hinged on the government’s ability to take swift, decisive action against foreign threats. Today, we take the survival of the United States for granted; in 1787, the men who wrote the Constitution knew it was no sure thing.
Energy, however, is only part of the story. The Framers were leery of the extraordinarily powerful executive they were creating. They opted for a unitary executive — rather than an executive committee or a minister advised by a privy council — to ensure that the president would be accountable. I elaborated on this in my 2014 book on impeachment, Faithless Execution:
Ultimately responsible for all executive conduct and unable to deflect blame for wrongdoing, Alexander Hamilton argued [in The Federalist, No. 70], a single president would be amenable “to censure and to punishment.” The future Supreme Court justice James Iredell concurred: the president would be “personally responsible for any abuse of the great trust reposed in him,” a key ingredient in making him “of a very different nature from a monarch.”
Yes, very different because, unlike a king, the president could be removed.
Trump’s opposition is quick to float rumors that he is about to fire Mueller, or has had to be restrained from firing Mueller. The president, who cannot get out of his own way and has a unique talent for stepping on news of his administration’s achievements, stirs this ever-simmering pot.
Advocating for the proposed Constitution’s ratification by the Commonwealth of Pennsylvania, James Wilson urged, “The executive power is better to be trusted when it has no screen” — no subordinate officers or departments to hide behind when things go wrong. Things, of course, often go wrong. The corruption of those trusted with power is a common cause for this, but by no means the only one. Being president is a hard job. Sometimes, an incumbent is in over his head. Or heedless. Consequently, when James Madison, among others, convinced the Constitution’s drafters that it would be “indispensible” to empower Congress to impeach and remove a president, he asserted that this would protect the nation not only from “perfidy” but from “incapacity” and “negligence.”
Now, let’s apply these principles to three pressing bits of nonsense: President Trump’s authority to fire Special Counsel Mueller; Congress’s lack of authority to enact legislation protecting Mueller; and congressional saber-rattling about impeaching the president’s subordinates, as if the president had nothing to do with their alleged derelictions of duty.
Firing Special Counsel Mueller
It would be an epic exercise in stupidity for the president to dismiss the special counsel. That is no doubt why, every time the Trump administration gets on a roll, Trump’s opposition floats rumors that he is about to fire Mueller, or has had to be restrained from firing Mueller. The president, who cannot get out of his own way and has a unique talent for stepping on news of his administration’s achievements, stirs this ever-simmering pot with tweets slamming Mueller’s staff and Trump’s own chosen Justice Department officials.
One has to assume that Trump knows it would be futile to fire Mueller. Doing so, far from ending the Russia investigation, would intensify it and make Trump’s impeachment by the House more likely (though his removal by the Senate would still be a long shot). Trump should have learned this from his botched firing of FBI director James Comey — which is what bought him Mueller.
It is increasingly manifest that there was no actionable collusion between Trump’s campaign and the Putin regime. Nor, for reasons we’ve exhaustively discussed, is there an obstruction case against the president. If Trump can contain himself and let things run their course, the high likelihood is that Mueller will effectively, if perhaps grudgingly, exonerate him on these points.
There are justifiable fears that Mueller could endlessly expand his investigation into new areas. But there are ways, short of firing Mueller, to guard against this. Moreover, it is an odd time to be hyping these fears when we have just learned that Mueller referred an unrelated investigation (the Stormy Daniels scandal) to another prosecutor (the U.S. attorney’s office in Manhattan) rather than seeking an expansion of his jurisdiction.
In any event, the chatter about Mueller’s status has given rise to two contradictory, constitutionally illiterate claims: that Trump can’t fire Mueller, and that Congress can shield Mueller from being fired.
A. The President’s Authority to Dismiss the Special Counsel
As is the case with all statutorily created executive departments, the Justice Department is empowered to make rules governing the manner in which it executes its lawful authority. Many of these rules are set forth in the Code of Federal Regulations. They include regulations pertaining to special counsels. Importantly, while these regulations guide federal prosecutors, they do not create standards that third parties may enforce against the Justice Department (a point, by the way, that Special Counsel Mueller has stressed in rebutting Paul Manafort’s motion to dismiss the indictment against him on the ground that its subject matter exceeds Mueller’s jurisdiction). (See Section 600.10 of Title 28, C.F.R.) And as noted above, a mere agency regulation cannot amend the Constitution; nor, indeed, may it overrule or create binding law — the point of a regulation is to carry out existing law.
One pertinent Justice Department regulation, Section 600.7, provides that a special counsel “may be disciplined or removed from office only by the personal action of the Attorney General.” It elaborates that the attorney general (or the acting AG when the AG is recused) may dismiss a special counsel for cause — “the Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” The implication, clearly, is that these are the only grounds for removing a special counsel, and that there may be no dismissal absent compliance with the rules, which include “inform[ing] the special counsel in writing of the specific reason for his or her removal.”
This is all well and good insofar as it concerns the Justice Department’s internal operations. It is perfectly appropriate for Deputy Attorney General Rod Rosenstein (the acting AG for purposes of the Russia investigation) to say that, to the extent it is his call, he will not remove Special Counsel Mueller absent “good cause,” as that term is fleshed out in the reg. If the Justice Department internally fears that any appointed special counsel has gone rogue, the Department should comply with the removal regulation, even if there is no mechanism to force its compliance.
But the regulation applies to the Justice Department, not the president. Justice Department regulations have absolutely no bearing on the president’s constitutional power to fire subordinate executive officers. Trump is empowered to fire Mueller, period. Mueller exercises the president’s power, and the president can remove that power at any time, with or without cause. He can dismiss Mueller directly. He can order Rosenstein to dismiss Mueller — and he can dismiss Rosenstein if Rosenstein demurs (or even if he doesn’t demur, since a president doesn’t need good cause to dismiss a deputy attorney general, either).
It would be suicidally counterproductive for the president to fire Mueller, but his power to do so cannot be doubted.
B. The Congress’s Lack of Authority to Protect the Special Counsel
Because members of Congress know full well that a Justice Department regulation is powerless to prevent a president from cashiering a subordinate, some of them propose enacting a statute to protect Mueller. They surely know this proposal is constitutionally spurious: a statute can no more limit the president’s Article II power than can a regulation.
The bombast about a protective statute is a preening exhibition of the type, alas, that has become more familiar in the age of 24/7 news coverage: Washington as a soap opera, uniquely fit for the Trump presidency. Progressive lawmakers answer to a Trump-deranged base that cares little for such niceties as the separation of powers. Moderate Republicans are characteristically scared to death of the media-Democrat narrative that crazy, corrupt Trump will fire the sainted Bob Mueller any second now. Cynically, both sides know not only that it would be unconstitutional to enact a law barring Trump from firing Mueller but also that there is no way that Trump would ever sign such a law, or that Congress would override the veto of this silly proposal.
This is not a serious gambit. It is cable-TV filler until Trump bombs Syria — something which actually calls for congressional action but on which Congress is AWOL.
Impeachment
Meanwhile, in the ongoing congressional effort to scrutinize investigative irregularities, the relevant committees continue to meet resistance from the Justice Department and the FBI. These executive agencies have flouted subpoenas for months. When they turn over materials after inexplicable delays, documents are heavily redacted. When some of the redactions are lifted under political pressure, we frequently find that it was fear of embarrassment, not concerns about protecting sensitive sources of intelligence, that explains the lack of transparency.
Exasperated, House Intelligence Committee Chairman Devin Nunes is no longer just threatening to have Deputy Attorney General Rosenstein and FBI Director Christopher Wray held in contempt of Congress (a threat that has previously helped pry loose subpoenaed documents). He now further threatens to commence impeachment proceedings against them.
As readers of these columns know, I believe Chairman Nunes and other Republican leaders who have pressed the Justice Department and FBI for answers are right to demand transparency. There are things that went on in the investigations of Trump’s campaign and of Hillary Clinton’s emails that should not have gone on. I have been inclined to defend the GOP-led committees against charges that they are ginning up a political spectacle to distract attention from, or even discredit, the Mueller probe (just as I was inclined to give the FBI and the Justice Department the benefit of the doubt on their use of the unverified Steele dossier until that position was no longer tenable).
But here’s the thing (to repeat a point I’ve tried to make before): As president of the United States, Donald Trump is in charge of classified information held by the executive branch, as well as of sensitive internal correspondence and memoranda maintained by executive departments and agencies. Just as he has the undeniable authority to fire a special counsel, so too does he have the undeniable authority to order the deputy attorney general and the FBI director to disclose the materials Congress has demanded — and to fire those subordinate executive officers if they fail to comply.
Remember, it’s a unitary executive. If the Trump Justice Department and the FBI are defying Congress, then President Trump is defying Congress.
If Trump is the wronged party in ‘Fisa-gate,’ the prey in a ‘witch hunt,’ no one has more interest in disclosure and no one has more power to force disclosure.
There has never been a moment since Donald Trump has been president that he could not have ordered the disclosure of information on the unmasking of Americans in intelligence reporting, on applications to the Foreign Intelligence Surveillance Court, or on electronic communications detailing the FBI’s rationale for opening the Russia investigation or tanking the Clinton case. If the Justice Department and FBI are withholding this information without good reasons, it is either because Trump wants it withheld or because he is insufficiently competent to induce his subordinates to carry out his instructions.
Of course, there is not a prayer that the House would impeach Rosenstein or Wray (this is a House that refused to consider impeaching IRS Commissioner John Koskinen despite well-established misconduct). There is even less of a prayer that the Senate would ever remove these officials. So why the threats? Someone more cynical than your humble correspondent would suggest that this just might be political gamesmanship. The threats come in conjunction with studiously unhinged-sounding presidential tweets rebuking the Justice Department and FBI for stonewalling. Taken together, they conjure up a “deep state” conspiracy — the dark forces of the bureaucracy arrayed against Trump. It makes for great theater . . as long as we all take pains not to notice that, if Trump wanted to, he could simply order the bureaucracy to disclose.
James Madison was right: Impeachment is indispensable if this government is to operate properly. If we revived it for its intended purpose, we would not need to use it very often before government officials began to understand that there were real consequences for malfeasance and misfeasance. That’s why I supported impeaching Koskinen: When egregious misconduct has been demonstrated, impeaching subordinate executive officials would be less tumultuous than impeaching the chief executive, and it would signal that the chief executive must either clean house or understand that he, too, could be impeached.
But even as we discussed Koskinen, no one was under any illusions about the IRS scandal: It was an Obama scandal in which Koskinen was a bit player, not a Koskinen scandal.
If the Justice Department and FBI are withholding subpoenaed information that shows misconduct, it is because President Trump is permitting the leaders of those executive branch components to defy Congress. So why aren’t Nunes and other committee leaders directing their ire at Trump? This is not sabotage by Obama holdovers — Trump appointed both Rosenstein and Wray. Why not point the finger at the guy they answer to? Why pretend that the president is being victimized by a cover-up that he has plenary power to uncover?
The president obviously knows how to tweet snark at his subordinates. Does he know how to give them orders? If Trump is the wronged party here, the prey in a “witch hunt,” no one has more interest in disclosure and no one has more power to force disclosure. If he won’t do so, and congressional investigators won’t demand that he do so, you can’t blame people for wondering if “FISA-gate” is more sideshow than scandal.
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