Should President Trump decide to fire special counsel Robert S. Mueller III, Attorney General Jeff Sessions and/or Deputy Attorney General Rod J. Rosenstein in order to curtail Mueller’s investigation, it will fall to defenders of the Constitution to explain why such action is an impeachable offense. Fortunately, some commentators have already begun to lay out the case.
Ian Bassin, executive director of the nonpartisan Protect Democracy, tells me: “If Trump takes steps to remove Mueller or Rosenstein or interfere in the investigation, he would be attacking the very foundation of our country: the Constitution and the rule of law. Interfering to protect himself or his associates would also be a sign of guilt — that he has something he’s desperate to hide — and at a minimum be grounds for opening impeachment proceedings.” In short, “In America, everyone — including presidents — ultimately must be held responsible for their actions.”
In a constitutional democracy, those in office should not wield the powers of the state to benefit their political allies and punish their opponents. In keeping with this principle, for 40 years, administrations led by both parties have maintained policies limiting contacts between the White House and the Justice Department (“DOJ”) on law-enforcement matters involving specific parties. These policies reflect constitutional principles that limit the situations in which the White House may interfere in law-enforcement matters involving specific parties. In short, it is constitutionally appropriate for the President to set generally applicable policies and priorities in order to enforce the laws that Congress has enacted. But in most types of cases it is likely to conflict with the Constitution for the White House to intervene in the Justice Department’s handling of an enforcement matter involving a specific party. And White House interventions based on the President’s personal or corrupt interests are always unconstitutional.
This is not just a general statement of democratic principles; it is actually a mandate specifically set forth in the “take care” clause in Article II, Section 3 of the Constitution. That provision states the president “shall take care that the laws be faithfully executed.” It does not say “unless he’s the potential defendant,” nor does it say “with favoritism toward allies and vengeance toward opponents.”
The Supreme Court has likewise enforced the principle that the president is bound to enforce the laws as written by Congress. In Youngstown v. Sawyer, in which the steel industry successfully fought President Harry Truman’s emergency seizure of the steel mills during the Korean War, the court stated, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” It follows that neither can he be a law amender, carving out exceptions for himself, his family and his cronies so as to evade the obligations that constrain other Americans.
Likewise, the presidential oath of office, explicitly set out in the Constitution, obligates the president “to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” The oath’s wording makes him the custodian for the Constitution on behalf of the people; it does not authorize him to roam the land using whatever powers he finds to further his self-interest. The white paper concludes: “Thus, when the President intervenes in an individual prosecution to influence it for corrupt or self-protective purposes, he violates the Take Care Clause and his oath. He is not preserving, protecting, and defending the Constitution to the best of his ability—indeed, he is undermining it—and he is doing so through involving himself at a level of execution that the Constitution does not contemplate.”
Historically, the Justice Department and White House have followed certain protocols to limit contact between the White House and DOJ to prevent political favoritism from tainting individual cases. These procedures are designed to head off even the appearance of obstruction of justice. If the president were to steamroll over the Justice Department for his own protection and zap the investigation into his own conduct, as he seems to be contemplating, there would be no doubt that such intervention would violate his oath and the “take care” clause.
Let’s not forget that another president found out that meddling with the Justice Department to protect himself and others was impeachable. The white paper points out:
The articles of impeachment against President Nixon included the allegation that the President interfered “with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.” If [Trump] were to interfere with an investigation directed at himself or if he were to order a DOJ investigation or enforcement against a political opponent, that conduct likewise would warrant impeachment proceedings.
In a sense, firing Mueller (or firing Sessions or Rosenstein in order to fire or curtail Mueller) could make impeachment a relatively uncontroversial call. Here, he would be telling the entire country that his fury over an unfair “witch hunt” was his motive. If he then acted to rid himself of his inquisitors, proving the commission of a “high crime” would be easy. (Did he fire Mueller or not? Did he tell Rosenstein’s replacement to rein in Mueller or not?) He would hand his opponents all the ammunition they’d ever need to end his presidency and make it virtually impossible for Republicans to defend him. Congress would not need to bother with evidence of collusion or consider whether more ambiguous action (e.g. asking if James B. Comey could lay off Michael Flynn because the latter is a “good guy”) could be the basis of impeachment. It would not need to determine whether there were mixed motives for firing Comey as FBI director. In sum, it would have a very strong case for impeachment and removal.
None of this means that Trump wouldn’t try to fire his nemesis, then bluster his way through the inevitable firestorm. That is how he has operated for his entire life. But the clear-cut constitutional principles at work here should serve to warn Republicans to stop insinuating the investigation is illegitimate and to impose legal hurdles to prevent presidential self-immolation. Mona Charen, conservative author and one of the directors of the new group Republicans for the Rule of Law, puts it this way: “Thus far, Trump’s assault on republican virtues has been largely rhetorical. That is corrosive and dangerous on its own. But any move to shut down a lawful investigation moves into strongman territory, and threatens the bedrock of America’s constitutional order — the rule of law.” If Republicans nevertheless decide to keep egging the president on, they will encourage Trump to take the single step that would almost certainly end his presidency and stain the GOP’s image for years to come.