Two Constitutional Lessons Worth Remembering: Norms Are Different From Legal Rules; And Improper Intent Matters But Is Hard To Establish

Posted in: Constitutional Law

The controversy last week surrounding President Trump’s tweets about the sentencing of Roger Stone, a Trump campaign advisor convicted of lying to Congress, is yet another reminder of two transcendently important—but often misunderstood, or at least vastly underappreciated—aspects of American constitutional design. First is the key distinction between modern governmental norms, on the one hand, and legal limits deriving from the Constitution itself, on the other. President Trump has been criticized for “interfering” with the traditional independence enjoyed by the U.S. Department of Justice (DOJ) and its career lawyers. (Even U.S. Attorney General Bill Barr seemed to be troubled by the President’s actions; Barr said publicly that the President’s pattern of tweeting makes “it impossible for [Barr] to do his job.”)

This is not, of course, the first time that many people have been shocked and troubled by the President’s willingness to insert himself into ongoing DOJ affairs. Critiques of the President’s conduct during the investigations conducted by Robert Mueller and the Federal Bureau of Investigation (FBI), concerning Russian election meddling and any role President Trump or his election campaign had in it, also sounded in the “independence” of the DOJ.

What are we to make of these criticisms of the President? While there is no denying that President Trump is taking a very different approach to the relationship between the White House and the DOJ than most of his recent Oval Office predecessors, the important point—constitutionally speaking—is that the independence of the DOJ that many have come to take for granted (and that most rightly think is a good thing to respect) is not built into the Constitution. Just the opposite. Constitutional novices sometimes have opined in a way that obscures who—as a legal, constitutional matter—has decision-making authority over federal prosecution. The ultimate power to prosecute or not (and recommending sentences is part of prosecution) does not rest with the FBI, or the “career prosecutors” in the DOJ, or even the attorney general of the United States. It rests with the President and the President only. He is the one in whom Article II of the Constitution vests “the executive authority” (of which criminal prosecution is a key component). He is the one the Constitution charges to “take care that the laws be faithfully executed.” And he is the one who can render moot any pending or future federal prosecutions (even prior to indictment) by pardoning individuals.

Since the summer of 2016, it has been easy to lose sight of these constitutional facts, given how people in the media, in Congress, and elsewhere have described (former) FBI Director James Comey, the FBI itself, other people in DOJ, and both Attorneys General since 2017, Jeff Sessions and Bill Barr, as having discretion to operate. These folks have all had important decisions to make, to be sure, but those decisions inevitably were decisions about what policy suggestions and recommendations to make within the executive branch, whose ultimate arbiter is the President himself.

Of course in recent decades Presidents often have, for political and efficiency reasons, liked to distance themselves from many prosecutorial decisions, and they may even have overtly sent the public messages that they were going to defer to the recommendations of underlings. These modern traditions have served America well, and most thoughtful analysts (all along the political spectrum) seem to embrace them to a large extent. But these traditions—which to my mind do have a great deal of virtue to them in most all cases—exist in the realm of the political and the prudential, not the legal or the constitutional. According to the supreme law of the land, the decision whether to proceed criminally, and the decision whether and when to defer to underlings at all, is one the Constitution commits to the President.

If this seems non-intuitive to many folks, I should add that much of it is corroborated by recent Supreme Court decisions (such as Edmond v. United States and Free Enterprise Fund v. Public Company Accounting Oversight Board) that lean in the direction of the so-called “unitary executive” theory, under which all actors who exercise core executive powers within the federal executive branch must be controllable by the president himself. To be sure, such recent cases send signals different from those coming from Morrison v. Olson, the case a generation ago which upheld, against a separation-of-powers challenge, the so-called independent counsel position created by Congress in the Ethics in Government Act of 1978. The reality is that Morrison, especially since Justice Brett Cavanaugh replaced Justice Anthony Kennedy, most likely does not command five votes at the Court today.

All of this leads to the second transcendently important reality about so many of today’s most divisive opinions about President Trump, namely, that whether his invocation of powers that are ordinarily permissible for Presidents to exercise can become morally and even legally problematic because a President’s motives are illicit or corrupt, but that this showing is hard to make, at least in formal legal proceedings. The question of impermissible motive may lurk in the background, but is the theme that unifies so many of the headline-grabbing disputes over the past few years. In the Stone affair, for example, was the President weighing in because of detached, genuine assessment of fairness by the head of the executive branch? Or was he exercising public power to help out a friend or crony?

Or consider the FBI investigation of Russian interference. Whether the allegations against President Trump—e.g., that he asked then-director James Comey of the FBI to end the Michael Flynn/Russia investigation and then fired Comey for not complying—are legally and morally troubling depends largely on what the President’s motives were. As noted above, understand that a President has the authority under the Constitution, assuming his motives are otherwise permissible, to start, direct, accelerate, dial down, and terminate all federal criminal investigations. Just as he is the prosecutor-in-chief, the declassifier-in-chief, and the pardoner-in-chief, so too the President is the investigator-in-chief. Although, again, as noted earlier, it might be wise for a President to keep his hands off certain matters —and failure to do so can make a President unfit in the eyes of the American public—it is not per se wrong, criminally or constitutionally speaking, for a President to direct an FBI head to end an investigation.

To illustrate this, as I have suggested in earlier writings, we might imagine that the investigation into Hillary Clinton’s careless email practices were ongoing when President Trump took office. If so, would anyone think that President Trump would have committed a crime or high misdeed by directing Mr. Comey to end such an investigation, so that the country could move on and begin to heal its divisions? Obviously not. So there is no absolute ban on presidential involvement in federal investigations as a general matter.

On the other hand, the President’s lawyers have been wrong in various fora when they have intimated that a President discharging constitutional powers given to him can never amount to obstruction of justice or other high misdeed. Imagine a President who confers a pardon—unquestionably one of the President’s core powers under Article II of the Constitution—but does so only because he is paid millions of dollars on the side. Such conduct would be impeachable conduct for sure, and this would be true whether or not it met the statutory definition of bribery under federal law.

What is key, then, in the Comey setting, was the President’s primary motivation. If it was his belief that Mr. Flynn was innocent and that consumption of additional resources would be wasteful, that would be one thing. If it was President Trump’s sense that Mr. Flynn, while perhaps guilty, had suffered enough, that would be another. If it was based on the personal friendship President Trump had with Mr. Flynn, that would be more worrisome still. And if it was because of President Trump’s concern that continued investigation might suggest criminal or other wrongdoing by the President himself or his relatives, that would be yet another. How inappropriate it was for President Trump to get involved in the investigation (assuming he did get involved) depends in large part on the reason he was getting involved.

And the same pattern repeats itself through many of the other key controversies over the past three years. Certainly Presidents can—for the right reasons—screen visitors from some countries more stringently than visitors from others. But whether the so-called “Travel Ban” was constitutionally problematic turned on why it was being implemented. So too for questions on the census about citizenship. Such questions aren’t inherently problematic; they become problematic only if the motives are illicit.

And so too even for the Ukraine matter featured in the recently concluded impeachment trial. Quid pro quos aren’t generically problematic. (All contracts that we live by every day are quid pro quos.) But conditioning foreign aid on a public investigation to be initiated for the dominant purpose of hurting a perceived election opponent (as opposed to withholding the aid for mistaken but sincere concerns about whether the aid would be misused or wasted) is (or ought to be) problematic. And the problem comes from not from the what (was done) but from the why (it was done).

Our appointed and elected institutions of the federal government have proven (through the centuries and not just the last few years) that they have a hard time rebuffing actions by any federal government institution, much less a President, based primarily on improper motive. Maybe legal and quasi-legal processes do not easily lend themselves to firm conclusions about illicit intent (outside of blatant criminal law scenarios where intent can be easily gleaned from conduct.) Rightly or wrongly, the federal courts (and Congress in impeachment matters) have been very leery of checking Presidents based on illicit executive purpose.

At the end of the day, the most important of the balances and checks in the Constitution—dissatisfying as it may be to many folks—is neither impeachment, nor repeal of statutes nor override of executive orders nor even efforts to amend the Constitution itself. The most important safeguard is electoral. Every four years a President (or at least her party) has to explain herself to the American people. And unlike the courts and Congress, the people are completely free to decide which traditions they care about maintaining, and which actions seem to them motivated by improper purposes, whether or not the evidence is clear and convincing enough to prevail in a formal judicial or quasi-judicial proceeding.

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