The Washington PostDemocracy Dies in Darkness

The state of the executive branch in the wake of the Mueller report

It’s not good.

Attorney General William Barr speaks alongside Deputy Attorney General Rod Rosenstein about the release of a redacted version of special counsel Robert Mueller III's report during a news conference Thursday at the Justice Department. (Patrick Semansky/AP)

One of the advantages to Spoiler Alerts taking long weekends is that rather than writing, the hard-working staff can read what other people think in the wake of important events. Since the Mueller report dropped Thursday, I have noticed that one particular sentence from that report represents a political Rorschach test. That sentence, on page 158 of the second volume of the report, reads: “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

This disturbs everyone who reads it, but for very different reasons.

It clearly disturbs President Trump. According to CNN’s Kevin Liptak and Kaitlin Collins, “Trump grew angry as he watched cable news coverage because, sources familiar with the matter said, a theme was emerging that vexed him: a portrait of a dishonest president who is regularly managed, restrained or ignored by his staff.” He’s likely going to be even angrier when he reads that, “Sources familiar with how the West Wing operates said attempts to subvert the President’s demands have not ceased now that the Mueller investigation is over. There have been instances in recent weeks where aides have slow walked or ignored Trump’s directives, hoping he will forget he gave them.”

For National Affairs editor Yuval Levin, writing in the National Review, the implications of that sentence are that Trump’s staff did not follow his orders: “Simply put, the people who work for the president use their judgment to decide when to do what he says and when to ignore him or flatly contradict his decisions.”

Levin acknowledges that it would appear that these forms of resistance served Trump’s interests in the end, but he does not like the implications one little bit: “this kind of behavior is a deformation of the logic of our constitutional system. ... We can’t take comfort from the existence of a body of appointed officials who will ignore the president’s orders when they see fit. Who are these people? Who gave them the power to do this? Why should we trust them? And what recourse do we have for holding them accountable?”

My answers to Levin’s four questions are as follows: (1) they’re people appointed by the duly elected president of the United States; (2) see the previous answer; (3) the better question is whether we should trust them more than Trump; and (4) the elected president can fire them and pay the political price. Trump is hardly the first president to have his appointed subordinates engage in the Dark Bureaucratic Arts to resist a policy they believe to be unwise. The difference here is not the tactics, it is the extreme nature of the president’s demands.

In his column, Levin is articulating the theory of the unitary executive, which argues that because Article II of the Constitution states, “the executive power shall be vested in a President of the United States of America,” resistance by staffers is futile. On this, I tend to side with political scientists Jonathan Bernstein and Naunihal Singh. They point out the absurdity of expecting a president’s subordinates to carry out every presidential order without regard to its sanity or legality.

As Singh wrote in The Monkey Cage last fall:

Just because the president is at the apex of the executive branch doesn’t mean he can simply issue orders and have them carried out without question. He’s simply not omniscient or omnipotent enough to ensure that everybody is moving in lockstep to support his aims.
Because leaders have limited information and time, they delegate. Delegation allows them to rely on others’ expert opinions without needing to acquire that expertise themselves. It enables them to have somebody else implement a policy, freeing them from doing it themselves. ...
Former top economic adviser Gary Cohn allegedly removed a document from the president’s desk that would, if signed, have changed U.S. trade policy, hoping that the president would forget about it — which he did. These flimsy gambits relied upon Trump’s mercurial nature to be effective. But while definitely a form of subversion, none of this constitutes a coup. Rather, these are standard bureaucratic bargaining moves taken to an extreme.

My concern is rather different from Levin’s. The officials who resisted Trump’s entreaties to obstruct justice — FBI Director James Comey, White House Counsel Don McGahn, Deputy White House Chief of Staff Rick Dearborn — are no longer in government. In their place, Trump now has new and more pliant senior staffers such as John Bolton and Mick Mulvaney in the White House and Mike Pompeo and William Barr at State and Justice. He wants to put Herman Cain and Stephen Moore at the Fed. They all have two things in common. First, their reputations will not be recovering anytime soon. Second, they were all willing to accept the Faustian bargain of exercising real power while also expressing slavish devotion to Trump.

With each passing day, the only people eager to work for the Trump administration are those individuals who are willing to subordinate everything to the whims of the toddler in chief. This makes it easier to conceive of Trump being allowed, or even encouraged, to act on his worst instincts.

Levin worries, sincerely, that the absence of a unitary executive will damage the country during a crisis. I would suggest that the crisis arrived in Washington on Jan. 20, 2017, and it is getting worse.