The redacted version of the Mueller report released by Attorney William Barr ends with a citation of the historic case of US v. Nixon and the quote, “no person in this country is so high that he is above the law”. That has been the mantra of our legal system when it comes to accountability for a President since US v. Nixon was decided on July 24, 1974, so much so that Brett Kavanaugh praised the decision in his confirmation hearings as “one of the greatest moments in judicial history”.
What has become increasingly clear in the intervening 45 years since that decision, and especially so under the Trump presidency, is that the mantra that the President is not above the law is more of a myth than reality. In fact, Kavanaugh heralded the entirely opposite view of the Nixon case as far back as 1999 when he declared ,”maybe Nixon was wrongly decided ― heresy though it is to say so” because the decision “took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official”.
Jack Goldsmith, the co-founder of the respected blog Lawfare, has written a pretty frightening critique of the Mueller report’s analysis of the potential obstruction of justice crimes that Trump may have committed and highlights the various Supreme Court decisions and Justice Department opinions that have carved out enormous exceptions to the concept that the President is not above the law since 1974.
The general thrust of those decisions is that the President is not bound by Congressional statutes if his actions are arguably within his constitutional powers as President unless the Congress expressly states so in the law it passes. This is known as the clear statement rule. As summed up in a 1995 Office of Legal Counsel (OLC) opinion, this rule states “[G]eneral statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President’s constitutional role…[S]tatutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives”. The exceptions to the clear statement rule are presidential actions specifically barred by the Constitution. An example of one such exception was cited in a 1974 judicial ruling that confirmed that bribery statutes did apply to the President because the Constitution specifically names bribery as a reason for removal by impeachment and, in Article II, specifically states “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected”. The 1995 OLC opinion further explained such an exception by stating it “raises no separation of powers questions were it to be applied to the President” because the Constitution “confers no power in the President to receive bribes.” The DOJ has used this clear statement rule numerous times to exempt the President from being covered by Congressional statutes.
Goldsmith goes on to criticize Mueller for eliding the clear statement rule when outlining his ten specific cases that would constitute obstruction of justice. Goldsmith elobarates in detail regarding Mueller’s deficient legal reasoning in regards to the clear statement clause which are less important than the conclusions Goldsmith reaches if the clear statement rule had been applied correctly. Those conclusions provide remarkable support to the concept of the “unitary executive” and the broad executive power of the President, as well as Attorney General Barr’s belief that the obstruction investigation was falsely predicated to begin with, not because there was no underlying crime but because the President’s actions fell within his constitutional mandated powers. Of the six factors Mueller cites in opening an obstruction investigation, Goldsmith sees five of them as falling within the President’s Article II powers and the sixth as potentially not obstruction at all. Under Goldsmith’s reading of the clear statement rule, the decision to fire Comey is the clearest example of the clear statement rule precluding obstruction of justice statutes from applying to his actions simply because “broad discretion to direct criminal investigations” conferred by his power over the executive branch. For Goldsmith, the only two incidents of obstruction that might not be covered by the clear statement rule are the dangling of pardons to Flynn and Manafort.
To be clear, Goldsmith is not endorsing this legal position and he is only approaching it from the point of view of whether Trump has committed crimes as opposed to impeachable offenses as he takes pains to make clear. He writes, “I want to stipulate that Trump did some very bad (not to mention stupid) things in response to press reports about his and his team’s involvement in the Russian interference in the 2016 presidential election, and to the unfolding investigation of that interference…In combination with Trump’s other abuses of power over the past two and a half years, I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option…My main point is that, under the clear statement rule, the obstruction statutes do not apply to Trump’s conduct to the extent that they would arguably limit or possibly conflict with his Article II prerogatives…My conclusion that Trump can do bad things in connection with his exercise of Article II power and not even theoretically commit a crime under the obstruction statutes as currently written might seem weird to the point of bizarre to some”. Indeed.
The broader implications of Goldsmith’s analysis are especially worrying in light of the fact that conviction on impeachment seems highly improbable with Republican control of the Senate. The president has repeatedly exploited the OLC recommendation that a sitting President can not be indicted as cover for intimating that what he has done is “legal”, although Mueller made the best case he could to show that is not so. This analysis also seems to indicate that it would be essentially “legal” for the President to order DOJ and other agency investigations into his political opponents because of his constitutional power over the executive branch and effectively ends the post-Watergate era of DOJ independence. Trump has already stated this position when he claimed he had the right to fire Mueller and he is now ordering Barr to pursue investigations against a number of his political adversaries, including Biden and the origins of the Russia investigation. It would also presumably allow the President to engage in acts that encourage foreign governments to pursue investigations of his domestic political adversaries under his constitutional power to direct foreign policy. Trump has already used that power to dissuade the Ukrainian government from cooperating with the Mueller investigation and is now attempting to get that government to investigate Joe Biden’s son.
For the last four and a half decades, we have lived with the belief that the President is not above the law, something the legal scholars and the media have repeated incessantly over the years, especially since Watergate. They were lying. In those 45 intervening years, judicial decisions and OLC rulings have exempted the President from many Congressional statutes, so much so that the President can abuse his executive power in many ways that would not be considered a crime, but would be if any other citizen had done so. This is especially corrosive, because it makes the barriers to impeachment even greater than they are now simply because the President can reasonably argue that his actions are “legal” and, if they are legal, then they should not be impeachable offenses. That is an especially dangerous situation with an aspiring autocrat like Donald Trump as President.
Originally published at https://thesoundings.com on May 13, 2019.