The Bleeding Wounds of Our Constitutional Order Charles Lipson
https://www.realclearpolitics.com/articles/2019/02/19/the_bleeding_wounds_of_our_constitutional_order_139505.html
America’s constitutional order faces mounting threats and too few principled defenders. The threats come from vitriolic partisanship, compounded by declining trust in government and the steady erosion of vital institutions, from churches and media to law enforcement. The warning signs are painfully clear.
The U.S. Constitution grants Congress, not the president, with the power of the purse – just as it is lawmakers on Capitol Hill who are tasked with ratifying or rejecting treaties, and offering “advice and consent” on federal judges and high-level administration appointees. President Trump’s decision to declare a national emergency (“which I don’t have to do”) as a pretext to fund his border wall is an affront to our constitutional doctrine of separation of powers.
It is only the latest example. The issue here is not whether the wall is a good idea. It is whether a president can bypass constitutional norms to build it—with the acquiescence of his political party. The same dynamic was at work when President Obama unilaterally decided to change the status of immigrants who came to the U.S. illegally as children. For years, he said he had no constitutional authority to do that. Then, he did it anyway. Obama also used constitutionally evasive tactics to pass the most important U.S. foreign policy pact in decades: the nuclear deal with Iran. In every substantive sense, this was a treaty. It should have been treated like one. Obama refused to acknowledge that because he knew the Senate would never ratify it (since that required a super-majority, and since he never bothered to consult senators as he negotiated the terms). So, he simply called it an agreement, not a treaty, and supine elected officials in the nation’s top legislative body let it pass. They have behaved that way for decades, passing off hard decisions to the White House or telling mid-level bureaucrats to make the rules themselves.
Another pernicious threat is the manifest political bias of our top law-enforcement institutions, from the Department of Justice and Federal Bureau of Investigation to the Central Intelligence Agency. During a presidential election year, the government’s top legal officials worked assiduously to clear Hillary Clinton of any liability for setting up a private, unsecured email server and using it to send, receive, and store classified material. How did the FBI bury that scandal? By grabbing the investigation away from the bureau’s professional field agents and handing it to FBI Director James B. Comey’s closest cronies in the agency. They granted immunity to all of Clinton’s top aides without demanding full disclosure in return, as any normal investigation would. They whitewashed Clinton’s activities in a report drafted before Hillary herself was interviewed; let her aides sit in at that interview (which they did not record); and then edited the final report to drop any phrases that posed legal jeopardy for the Democratic nominee.
Comey then capped off his Keystone Kops investigation by making an unprecedented public disclosure of what the FBI had allegedly found—and then declining to charge her. The FBI is not supposed to make such disclosures. Nor is it supposed to decide whether to charge someone. That’s the purview of Justice Department prosecutors. Of course, Attorney General Loretta Lynch had already compromised her office by conducting a private meeting with Bill Clinton, where they also excluded official note-takers. She says they talked about grandchildren. Yeah, sure.
After that mess, Comey and his deputy, Andrew McCabe, turned on Donald Trump, first as a candidate and then as president. Their first step was to launch a sweeping counter-intelligence investigation. They were particularly eager to gain warrants to spy on the campaign. To do so legally, they would need to present solid, verified evidence to judges on the secret Foreign Intelligence Surveillance Court. They didn’t. Although the applications are still secret, the warrants look increasingly like a fraud on the courts. The key evidence was a dossier compiled by a foreign agent who was paid by the Clinton campaign, using a law firm and opposition research firm as intermediaries.
Clinton operatives then used their contacts to leak that information back to the FBI, which relied on that information, even though it had been informed by Bruce Ohr, the fourth-ranking official at DOJ, that the evidence was unverified and biased. Despite the warnings and sketchy evidence, DOJ and FBI officials signed the warrant applications, verifying the materials as true and hiding their connection to the Clinton campaign. Comey himself has publicly stated the dossier was “salacious and unverified,” yet he signed off on a warrant request anyway. So did other senior DOJ officials. How could this happen? Who will be held accountable?
Until this week, these biased investigations seemed like the worst of it. Unfortunately, they were not. We now know that the highest officials at DOJ and the FBI privately discussed trying to get rid of Trump. The issue here is not whether Deputy Attorney General Rod Rosenstein offered to “wear a wire” to record Trump, disturbing as that is. (Rosenstein says it was a sarcastic joke; the acting head of the FBI, McCabe, and the FBI’s general counsel thought it was serious.) Far more troubling is a discussion within the FBI and DOJ about using the 25th Amendment to remove a president from office. That amendment is designed to replace a president temporarily in case of a serious medical emergency, such as Woodrow Wilson’s incapacitating stroke in 1919. To remove the chief executive for any other reasons, the House must impeach him for “high crimes and misdemeanors” and the Senate must convict him after a trial.
For law-enforcement officials to seriously contemplate using the 25th Amendment to avoid impeachment and overturn an election is tantamount to planning a coup. Whether or not this discussion was illegal is not the point. The crucial point is that our law-enforcement agencies should have no role in political decisions, just as our uniformed military should have none. Yet senior law-enforcement officials appear to have crossed that bright line on a political issue of the highest consequence. They did not find enough support to set their plot in motion, but the discussion itself represents a profound threat to our constitutional order.
A third threat, not unrelated to the previous two, is sinking public trust in virtually all of our public institutions, whether it is Congress, the courts, the media, universities, corporations, police, you name it. Once-respected institutions like the Catholic Church are in deep trouble. The same is true of the federal judiciary, which is now so divided and politicized that news reports routinely tell us who appointed the judges rendering controversial decisions. One of the few public institutions that commands respect from most Americans is the military.
More and more, our public and private institutions are seen as protagonists in a “soft civil war,” where the opposing party is seen as a noxious enemy, not the loyal opposition. The crisis is obvious. The path to solving it is not. A new presidential campaign, which is beginning disturbingly early, is already pouring salt on our wounds. What we need, desperately, is a salve.
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