Impeachment and presidential responsibility

My latest article, “Conviction, Nullification, and the Limits of Impeachment as Politics,” has now been published in the Case Western Reserve Law Review.  In it, I argue that although impeachment is often denominated as “political,” that description both overstates and misstates the nature of impeachment, which represents a sober constitutional moment that must rise above ordinary politics.  That is especially true when an impeachment reaches the Senate, which is transformed from a political body into a quasi-judicial body adjudicating guilt.

Although not strictly “criminal” in the conventional sense, and although an impeachable offense arguably need not be a defined part of the existing criminal law, much impeachment law and procedure is nonetheless informed by the law of crimes.  Note, in particular, that the Constitution requires that the Senate “convict” an impeached official, a term that the Constitution normally employs only in the context of criminal adjudications.  In light of this understanding, when the United States Senate sits as a court of impeachment, I argue, it is transformed into a body where the incidents of partisanship and political coalition-building that characterize ordinary legislative business must ultimately be subordinated to objective judgments about higher-order interests.  Those interests include fairness, the rule of law, the separation of powers, and — when the president is impeached — presidential responsibility.

Hamilton spoke of presidential responsibility in the impeachment context.  Arguing for energy in the executive in Federalist No. 70, Hamilton urged unity.  Unity is better for, among other things, holding presidents responsible (because plural executives will try to shift blame from one to the other).  Unity therefore allows the people the chance to discover “with facility and clearness the misdeeds of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.”  Hamilton then returns to responsibility in Federalist No. 77, where he reiterates impeachment as a safeguard for abuses of executive power.  Indeed, in No. 77, Hamilton is defending the Senate’s role as a check on presidential appointment power.  He is demonstrating that this check, along with impeachment, reflects the safety of a system in which the legislature has control over the executive when he abuses his office.

Impeachment has, of course, been much in the news of late, and a subject of multiple posts here.  Last week, for example, reporting concerned statements by former Senate Democratic Leader Harry Reid, who cautioned Democrats against aggressively pursuing impeachment of President Trump.  “Stop it,” he said of impeachment talk, noting the political risks to Democrats.  But Reid also went on to say that vital institutions — the legislative branch and judiciary — have been “decimated” and that constitutional checks and balances have been “sliding out the door” since Trump’s election.

This is worthy of reflection.  If — if — the President has deliberately violated the Constitution, or done serious damage to the separation of powers, and if those offenses are sufficiently serious, why not talk about the possibility of impeachment?

If you are among those who have demanded that congressional Republicans in the Trump Era set aside political calculations and place national interests above party interests — even if doing so presents political risks — then you must acknowledge that this wise advice should apply to Democrats, as well.  If the interests of preserving constitutional government and the rule of law demand an impeachment inquiry (and presidential accountability), why ignore that demand merely because impeachment brings political risks?

Of course, whether a president has committed impeachable offenses is a separate, and complicated, matter.  People of good faith can reasonably debate whether this President, or others, committed impeachable offenses.  Indeed, that debate may well be premature with respect to the current President (and I remain skeptical that pre-presidential private acts can be impeachable, even if they are criminal).  But even setting aside whether sufficient evidence exists to convict a president of a crime, if a president endeavored to thwart a criminal investigation or prosecution, to undermine the legitimacy of and public confidence in federal law enforcement officials or of the criminal law, or to exert undue influence upon an investigation or prosecution, this would raise serious questions about whether the president had abused his office and violated the sacred commands of Article II.  That part of the Constitution requires him to “take care that the laws be faithfully executed,” as well as to faithfully execute his office and to preserve, protect, and defend the Constitution.  Those questions rise to the level of gravely serious when the president engages in such actions for the purpose of protecting himself or his associates from being implicated in wrongdoing, or of endeavoring to assure that the laws are not enforced against him or his allies.

Congress must therefore ask, if those conditions ever existed, even short of prosecutable criminality, would they be worthy of an impeachment inquiry?  If so, would it matter that there was political risk, or would fidelity to constitutional government be more important, despite the risks?

Senator Reid is correct that impeachments are “unpleasant.”  Moreover, the super-majority requirement for conviction in the Senate makes it difficult to imagine any president being convicted when the Senate is closely divided along party lines.  Surely the Senate would be rightly concerned about taking up an impeachment where acquittal was a foregone conclusion.  Those are not inconsiderable factors.  And there is no question that Congress is a political beast.  But just as raw politics or partisanship should not be employed to instigate an impeachment or drive a conviction, neither should raw politics or partisanship be employed to scuttle a legitimate impeachment inquiry or sensible senatorial judgment about guilt.

As I urge in this paper, there must be limits to the electoral calculations and partisan machinations that attend impeachments, particularly those that form of a part of ordinary Senate business, once impeachment has arrived at the chamber.  Otherwise, the constitutional mechanisms for presidential responsibility become substantially weakened, and Congress takes yet another step toward irrelevance.

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Attorney General’s memo on pursuing drug-related capital crimes

This is a follow-up to my last post, from March 19.  Yesterday, March 20, the Attorney General circulated this memorandum to the United States Attorneys, “strongly encourag[ing]” federal prosecutors to “use” the existing capital offense statutes that involve drug trafficking predicates.  He specifically identifies VICAR, the firearms statutes, the CCE law, and the drug kingpin provisions of the Federal Death Penalty Act (did he catch my last post, I wonder?).

While I fully support the sentiment expressed in the AG’s memo, I’m wondering what its purpose is.  After all, the existing death penalty protocol already requires that the United States Attorneys submit all death-eligible cases to Main Justice for review.  Pursuant to the existing death penalty protocol in the United States Attorneys Manual, federal prosecutors in the districts cannot unilaterally decide whether to seek the death penalty; they can only make recommendations, and the final decision belongs solely to the AG.  This is important, by the way.  As I understand the memo, it should not be interpreted to mean that the AG has now instructed federal prosecutors to unilaterally seek death sentences.  Under the protocol, they have no such power until he says so after Main Justice protocol review.  Rather, unless I am mistaken about the memo’s meaning, I understand the memo as instructing federal prosecutors to charge these underlying capital offenses (i.e., to “use” them) when the facts support such charges, thus ensuring Main Justice review and an AG decision, as well as a conforming indictment.  I do not see this as unilaterally changing the protocol (indeed, it would be strange for the AG to simply give up centralized Department review in these cases).  Consequently, when the AG refers to the “pursuit” of the death penalty in these cases, he is the one — the only one — who decides whether the death penalty is “pursued.”  It makes little sense to place that burden on the districts, who already have an obligation to submit death-eligible cases for review.

With that in mind, my sense is that federal prosecutors are already “using” these statutes — in the sense that they are seeking indictments and submitting cases for review pursuant to existing statutory law (with the possible exception of using section 3591(b), which applies only to a very small subset of potential defendants, as compared to, say, section 924, which is far more broadly applicable).

Moreover, assuming the memo means to retain the existing protocol, is the AG hinting that more USAOs need to submit “seek” recommendations?  Or is he hinting that he will sign off on the death penalty in cases implicating these statutes?  I reiterate, as I have before: the death penalty may be the right decision in a given case, but it is dangerous to signal in advance that the death penalty will be sought, prior to full and fair review of each individual case.

So I suppose one possible consequence of Monday’s presidential announcement, and of the AG’s memo, is that more and more United States Attorneys will submit “seek” recommendations to Main Justice.  And perhaps that is wise, depending upon the cases.  But each case will still have to proceed through the Capital Case Section and the AG’s Review Committee, as well as ODAG and OAG.  And defendants will still have the opportunity to argue against seeking death in their cases.  So it is possible that this new push will practically result in more capital prosecutions in cases involving drug-related killings.  But I do not see how it will change much of what federal prosecutors, and the death penalty experts at Main Justice, are already doing, and have been for many years.

Perhaps, then, the purpose of the memo was not to change what is already happening on the ground in the world of federal prosecution.  Perhaps the memo was simply meant to send the message that this Justice Department takes seriously the social, cultural, familial, and economic damage being done by those who seek to profit off of the misery, tragedy, and ultimate death of those affected by the current drug crisis.  More death sentences will not solve the crisis.  But a death sentence might serve the ends of a justice in a given case.

Let’s cook: Drug Trafficking and the Federal Death Penalty

Today, in remarks in New Hampshire, and via the White House website, the President announced an opioid prevention and enforcement plan and repeated his previous suggestions about imposing the death penalty for drug trafficking.  That issue has garnered significant attention, though it is not clear whether he will propose any new death penalty to federal criminal law.

The President often speaks in grandiose and vague terms, so it is difficult to know what he means by a death penalty “for drug traffickers.”  His language on this issue seems to be the very species of flumadiddle that nearly always characterizes his public speech on matters of complex policy.

Quite possibly, what he has meant in other remarks is a death penalty option in cases where a dealer distributes to a person who then subsequently dies from the drug received as part of the transaction.  The President did not elaborate on this today, though the White House announcement of the plan says that the Justice Department would seek the death penalty “where appropriate under current law.”  But the President also said today that DOJ is “working very hard” on changing the law.  Nothing more specific, naturally.

Several issues come to mind.

First, the idea of a death penalty connected to drug trafficking is not at all outrageous or even unusual.  Several provisions of federal criminal law already provide for this (the firearms statutes, the CCE/drug kingpin law, the drive-by shooting law, and even the racketeering laws, like VICAR).  Moreover, Congress in 1994 beefed up the capital punishment provisions for CCE/kingpin-related crimes in the Federal Death Penalty Act (FDPA).  See 18 U.S.C. 3591(b).  Indeed, a drug kingpin — Juan Raul Garza — is one of only three people executed by the federal government in the modern death penalty era (he was executed a little over a week after the Government executed Timothy McVeigh).

I understand the President to be demanding stronger enforcement of those laws.  But to suggest, as he did today, that the country maybe is “not ready” for a capital drug trafficking law suggests either that he does not know that current law already covers this ground, or that he has an unusual new capital drug trafficking law somewhere up his sleeve (is that what he meant when he said that DOJ is working to change the law?).

Second, if a new capital drug trafficking law was adopted, what would it look like?  The idea that the act of engaging in a drug transaction in which the recipient dies would be punishable by death — particularly where the victim’s death is reasonably foreseeable — is not as outrageous as it may seem.

The idea could be based on a fairly standard theory of felony murder — death resulting from the commission or attempted commission of the underlying drug trafficking felony.  And it would be consistent with the theory of non-capital death-resulting penalties used not only in the some of the federal statutes mentioned above, but also those contained in the core drug offense penalty statutes.  See, e.g., 21 U.S.C. 841(b)(1); 21 U.S.C. 960.  Those statutes could be amended to include death as a penalty for the death-resulting conduct.

This general idea could, however, raise significant questions of causation and culpability, depending upon how the law is drafted.  Who is the cause of the victim’s death: the street-level dealer?  The distributor?  The manufacturer?  The victim?  When does the chain of causation between the underlying felony and the death end? (but see this earlier post on one of the federal statutes punishing death-resulting drug activity).  Would it matter that the victim took the drugs voluntarily?  That might matter to FDPA enforcement, because one of the mitigating factors listed in section 3592(b) is that “the victim consented to the criminal conduct that resulted in the victim’s death.”  A new  statute could also raise questions about Eighth Amendment proportionality under the rule of Enmund v. Florida, if the dealer/trafficker’s culpability is too attenuated from the death (though I would argue that Tison v. Arizona would likely provide an important counterweight to any Enmund claim, where the dealer/trafficker could be said to be a major participant with reckless disregard for human life, which may be especially true when trafficking in certain opioids).

So there are some open questions raised by the idea of a new capital drug trafficking statute, and perhaps that has made the White House hesitant to propose one.

Finally, even assuming that the President’s interest in seeking more death penalties in drug cases is desirable, and that he is simply asking for stronger enforcement of current law without any new additions to the prosecutorial menu, publicly pressuring the Justice Department to seek the death penalty is a dangerous game to play.

A President should be able to make his law enforcement priorities known, including his support for the death penalty.  Every President shifts DOJ resources to those areas he wishes to prioritize (gangs, guns, corporate crime, etc.).  Still, as I have previously written in the context of the President’s public statements about the Saipov case, whenever the President appears to be putting political pressure on the Justice Department to seek the death penalty, that pressure can create the impression that the DOJ’s death penalty review process is a sham.  It undermines public confidence in what should be a serious and apolitical review based on the facts and circumstances of each case.  That confidence, and the sober nature of DOJ death penalty protocol enforcement, is critical to the continued legitimacy of the federal death penalty.

To be fair, today’s remarks do not raise quite the same concerns — advocating a death penalty generally for a category of federal offenders is not the same as advocating it in a specific case without having all of the available facts and evidence.  And the White House’s statement that the DOJ “will” seek the death penalty “where appropriate under current law” may suggest that the review process will remain objective.  But, it also raises a concern: does the White House mean to say that the DOJ will seek the death penalty where the statutory scheme provides for it?  Or does the White House mean that the DOJ will seek the death penalty only where current law allows it and the DOJ concludes from its internal review that death is an appropriate punishment based on the specific facts and circumstances of the case?  Big difference.

The President’s proclivity for public bombast when wanting to appear “tough” can have negative consequences for the policies he claims to support, transforming tough talk into presidential weakness.  His counter-opioid plan has some admirable components.  They deserve a serious but careful defense.

Trump and Thomas on guns, after Parkland

Gun law and policy dominated much of this past week’s news.  While the President expressed interest in supporting new measures, he also returned to some of the more extreme gun rights rhetoric that we saw during the campaign.  Meanwhile, little-noticed, another Second Amendment voice emerged.

During the presidential campaign, then-candidate Trump took positions on gun rights that call into question the reliability of his views (his campaign website links to gun policy are now gone, but see the contemporaneous reporting here and here).  He apparently believed that “law-abiding people should be able to own the firearm of their choice.  The government has no business dictating what types of firearms good, honest people are allowed to own.”  Although he asserted that current laws should be enforced, he also objected to gun bans.  I covered this ground during the campaign, noting the incoherence of his position.

The President announced this week that he has directed the Attorney General to craft regulations making bump fire stocks unlawful.  Set aside for the moment that a President who has boasted about undoing the regulatory state is now pushing new regulations (rather than legislation, which he could recommend).  The idea appears to be based on the proposition that the accessory functionally turns a semiautomatic weapon into an automatic one (a “machine gun”), and thus into a weapon that is already banned.  See 18 U.S.C. 922(o).  Whether done through new legislation or a new regulation, effectively, the President is now supporting a ban on a specific type of firearm, which differs markedly from the line that he peddled during the campaign.

The President also stated this week that he was open to legislation expanding background checks for firearms purchases (NYT coverage here).  During the campaign, as reported, Trump criticized efforts to expand background checks, saying that we should not expand a broken system and even promising to undo President Obama’s executive action on background checks (see here).  Perhaps his tepidly-expressed support this week will depend upon the specifics of forthcoming legislation.  But the real test of the President’s mettle on this issue will come when he is asked to back a measure that the NRA does not support.

Finally, he endorsed the idea of arming school teachers and staff (see WaPo here).  This idea may be worthy of consideration, but it is not a gun restriction. It will not reduce the number of guns available, nor would it likely deter many school shooters (e.g., those who expect, even hope, to be killed during their attack).  Moreover, whatever the merits of the idea with respect to school safety (and there are some), it is hard to see how this idea would protect Americans from gun violence in places that are not schools, or how it will help to curb gun trafficking, or gun crimes committed by street gangs or other criminal organizations that regularly employ and stockpile firearms, including military-style weaponry.

Another strong gun-rights view, however, appeared this week and was largely ignored.  Earlier in the week, Justice Thomas issued an opinion dissenting from the denial of certiorari in Silvester v. Becerra, a Second Amendment case involving the constitutionality of California’s 10-day waiting period for existing gun owners.  Repeating assertions he has made in earlier cases, Justice Thomas lamented the Court’s treatment of the Second Amendment, referring to it as a “disfavored right” and a “constitutional orphan.”  He correctly noted that the Court has not heard argument in a Second Amendment case in eight years, and has not granted a case assessing the constitutionality of a gun law in 10 years (since D.C. v. Heller).

Obviously, Justice Thomas’s several pleas to this effect have not persuaded the Court.  In fact, I wonder whether recent events will further dampen the likelihood that the Court will show interest in reviewing gun restrictions in the near future.  But his observations demand attention.  After all, it only takes four votes to grant.  So the question now is: will the Chief Justice and Justices Thomas, Alito, and Gorsuch ever agree on taking a new Second Amendment case?  What’s holding them back?

Since Heller, gun rights have become significantly liberalized in many states.  The practical effect of liberalization is that, even if courts restrict Second Amendment rights, the states remain free to keep gun rights broader than they would be pursuant to the Second Amendment.  Of course, Congress could mitigate some of this liberalization with federal legislation.  The most meaningful fights over gun rights therefore may not be found in Second Amendment litigation in the courts, important though that litigation may be.  Rather, the most meaningful battles may well be in Congress and in legislative bodies around the country that have seen fit to liberalize gun rights.  Still, close and pervasive gun regulation exists in America, and it is that regulation that is the subject of so many Second Amendment challenges.  Problem is, is this the right time for the Court to consider striking down gun regulations?

The mere fact of a political battle over individual rights does not necessarily mean that courts will stay on the sidelines (consider, for example, the same-sex marriage issue).  And rights are meant to be safe from the whims of political majorities.  Still, for now, perhaps the Court is content to leave its substantive Second Amendment jurisprudence where it stands after Heller, and leave the remainder to the political process, state constitutional law, and federal courts.  But if that is true, would it not prove Justice Thomas’s point?

One of Heller’s virtues was its recognition that Second Amendment rights are not unlimited; that a Nation devoted to the possession of guns for lawful self-defense and defense of others can also be a Nation where those same guns are sensibly regulated.  Imagine that, rather than avoiding the matter, the Court granted multiple Second Amendment cases and simply read Heller narrowly, clarifying the standard of review and applying it to protect most gun regulation.  That may not please Justice Thomas, and it would certainly result in amplified calls from some gun-rights advocates for appointment of “pro-gun” judges.  But a more fully developed Second Amendment jurisprudence could be helpful to the ongoing political debate about gun rights by clarifying the scope of the Constitution’s protection.

Indeed, a more fully developed Second Amendment case law could (depending upon its direction) have the effect of making absolutist Second Amendment rhetoric even less acceptable, pushing extreme gun rights talk further into the fringe and easing the legal path for sensible new criminal laws to prevent and punish gun violence.  That result would prove even more powerful if it came from the Court’s conservatives.  And for his part, the President could abandon his own loose rhetoric and return conservatism to its more natural place of balance, away from the extreme: that is, a decent respect for the tradition of gun rights tempered with a recognition that sensible gun regulation bears an important relationship to controlling crime and violence.

Investigations, privileges, and Bannon’s gamble on contempt

On Tuesday, former White House chief strategist Steve Bannon refused to answer questions from the House Intelligence Committee concerning his time in the Trump transition and on the President’s staff.  He was immediately subpoenaed, and required to appear again yesterday.  As Politico reports here, he communicated to the Committee that its demand was unreasonable.  He further indicated that he would be working with the White House to determine whether it would be asserting executive privilege to prevent him from testifying.  Chief of Staff John Kelly indicated on Wednesday, however, that the White House had not asserted executive privilege on Bannon’s behalf, contradicting some earlier understandings.  See The Hill report here.

If Kelly is right, then Bannon’s action fits a pattern of witnesses in the congressional Russia investigations simply choosing, on their own, when they will answer questions and when they will not, with no apparent consequences.

Several problems emerge from this saga.

1.  Bannon cannot assert executive privilege.  Only the President can.  Bannon’s apparent assertion Tuesday (if Kelly was right) and again yesterday, is based on what I call preemptive executive privilege.  This is when a witness hypothesizes that an answer might possibly implicate executive privilege, even though it has not been invoked, so the witness will preemptively refuse to answer based on the future possibility of a presidential invocation.  This is problematic, and Congress should put a stop to it.  Unless there is a clear basis for a legitimate assertion of the privilege—in which case there is an argument that Congress should be sensitive to the President’s constitutional prerogatives—Congress should demand that the witness answer or, if not already under subpoena, be subpoenaed and then held in contempt for any refusal to comply.  In most cases, Congress’s prerogatives will outweigh these preemptive assertions.

2.  Bannon was also issued a subpoena to testify before the grand jury in the Special Counsel’s criminal probe, though apparently he is now being allowed to meet with federal prosecutors outside of the grand jury environment.  Bannon is reportedly saying that he will tell the Special Counsel “everything,” (see Daily Beast coverage here) though he apparently believes he does not have to answer to Congress (yet).  Bannon may be relying on an oft-heard claim about executive privilege and its basis in the separation of powers—it can be invoked against Congress but not in a probe within the executive branch.

This view misapprehends the privilege as it applies (to the extent that it does) before Congress.  First, it is wrong to suggest that the mere invocation of the privilege in a congressional investigation is per se adequate to enforce it.  While it is true that executive privilege has its foundations in the separation of powers, it is not true that any invocation of it in the courts or before Congress is necessarily effective.  The Supreme Court has never held that a congressional investigation must yield to a claim of executive privilege, and there is precedent for the opposite conclusion.  See, e.g., House Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008).  Of course, usually these kinds of disputes are resolved through accommodation, and that may well happen here.  Perhaps it should. But Congress could seek enforcement of the Bannon subpoena even if there is an invocation of the privilege.

My guess is that Bannon is betting against that.  Bannon clearly knows that he cannot avoid the Special Counsel through a claim of executive privilege, see United States v. Nixon, and yet I would imagine that Bannon is counting on Congress not seeking enforcement of the subpoena.  He has ample reason to bet on that, given this Congress’s lax enforcement of its prerogatives with other witnesses.  Or perhaps he is ultimately counting on a process of accommodation.  So, assuming arguendo that there is an invocation of the privilege on which Bannon could theoretically rely, the question is whether Congress will have the institutional backbone to enforce it, and call Bannon’s bluff.  (On the other hand, if the White House refuses to assert the privilege, perhaps Bannon will comply; or perhaps he will continue to resist and simply gamble on non-enforcement).

3.  Bannon refused to answer Tuesday and was subpoenaed.  On the spot.  And yet other witnesses from the Trump campaign have refused to answer questions and were not subjected to a subpoena.

In particular, consider that Donald Trump Jr. recently appeared before the Committee and refused to answer questions about his discussions with his father, raising a bizarre claim of attorney-client privilege (which has been largely debunked, see here).  Even if the assertion was legitimate, the attorney-client privilege, unlike executive privilege, is not a constitutionally-based privilege, and Congress could simply rule that the privilege should yield to the need for disclosure of the information it seeks.  If that is the case, then why did Trump Jr. not receive a subpoena?  Why has the Committee not compelled him, and others who have balked at answering certain questions, to appear again before the Committee and give the requested information or be subject to a contempt prosecution (as, apparently, is now being contemplated for Bannon)?

Investigative power is meaningless unless Congress is willing to compel testimony and punish non-compliance; otherwise, witnesses have no incentive to play ball with Congress.  The contempt power is one of the most important tools available to Congress.  And recent history shows that congressional Republicans know how to use it (ask Lois Lerner and Eric Holder).

If a Republican Congress can hold Lois Lerner in contempt for refusing to give testimony after a bungled assertion of the Fifth Amendment privilege (a constitutional privilege, and one that was later validated by the DOJ), then surely it can demand answers after an absurd assertion of the attorney-client privilege or a wholly preemptive assertion of executive privilege that probably doesn’t apply anyway.  If, like me, you think that it is critical that Congress investigate Russian active measures and take legislative steps to thwart further Russian influence, then it seems clear that Congress needs full information about Russia’s activities in 2016.  These witnesses may have important and useful information, and they should be required to give it, in aid of the legislative function.

The failure to insist upon important information from witnesses during a critical investigation offers yet another example of the damage that can be done to constitutional government when legislators become slaves to party loyalty and/or the president of their party.  Republicans in Congress must have a fuller appreciation for their role in the separation of powers and their institutional prerogatives (Democrats had the same problem during the last Administration).  They seem to have finally awoken to this notion when dealing with Steve Bannon.  But will they hold his feet to the fire?  And if so, what about the others who have simply taken a pass on cooperating?

 

Checks and the dangers of political hero worship

For those who revere the new tax legislation, December 20, 2017 was a memorable day.  To those who revere the constitutional separation of powers, it was also a memorable day — but for all of the wrong reasons.

After passage of the tax bill in each chamber, but before signing it, the President hosted Republican members of Congress at the White House.  Had they gathered for a traditional bill signing, or perhaps a holiday mixer full of lively conversation and egg nog, the gathering would have been relatively unremarkable.  What transpired there, however, was, to a constitutionalist, utterly chilling.  Speaker after speaker sung the praises of President Trump (see this WaPo piece). This kind of praise may actually reflect a deification of the President, and the presidency itself, that troubles modern constitutional politics and complicates the separation of powers.

Now, it is important not to overstate the problem.  The Constitution requires that the President and Congress agree on legislation before it can become law.  It is not constitutionally problematic that the White House and the Congress have some meeting of the minds on legislation.  Nor is it constitutionally problematic, or even uncommon, that members of Congress compliment the President when they are in agreement with him on some matter of public importance.  This happens in other presidencies, too.  But this event went beyond the kind of constitutionally necessary departmental duality that characterizes lawmaking pursuant to Article I, section 7.  And these were not merely kind words or gestures of respect.  Rather, it was the kind of effusive hero worship that has become all-too-common in the President’s orbit.  When it comes from Congress, it is a special problem.  Congress is not supposed to be in the President’s orbit.

It is common to hear talk of Donald Trump’s demands for loyalty.  Loyalty is one thing; supporting the boss publicly is one thing.  This is different.  Trump seems to prefer, if not demand, gushing, melodramatic praise that treats him as an omnipotent and omnibenevolent deity.  All that is good flows from him; all that is not is someone else’s fault.  One wonders whether these men and women ever spoke of Lincoln or Reagan the way that they spoke about President Trump last week.

There are, of course, practical, even strategic, reasons for this kind of public worship — assuming one does not actually worship President Trump.

First, those who work for the President may do this because it may be what he expects of them and anything less would jeopardize their position.  (consider the similarly pathetic cabinet meeting earlier this year, which one reporter described as the “weirdest cabinet meeting ever.”  See here.).  But this would not explain such adulation from a member of Congress, unless the member is under the impression that he works for the President — a deeply ignorant notion but one that is not at all off of the table in the modern Congress when it is controlled by the same party as the President.

Second, one may offer flattery for the purposes of extracting some benefit.  It must be one of the worst-kept secrets in Washington: if you want something from President Trump, simply go on television and talk about him as if he is a god.  Perhaps, then, it was this second explanation that applies to the tax bill gathering last week.  After all, what better way to secure the President’s support for all manner of other policies than to lavish him with adoration?  If so, it is politically understandable, but no less troubling to those of us who still regard the constitutional separation of powers as worthy of preservation.  Here’s why.

The deification of the presidency only amplifies the powers of the executive at the expense of others in the constitutional system.  This is inconsistent with the Constitution’s distribution of power and is especially unnerving when the President is already prone to unreasonable self-aggrandizement.  It also sends a signal that Republicans in Congress have now officially anchored themselves to the President.  That makes it all the more difficult to resist the President when he comes calling, all the more difficult to publicly disagree with the President, and all the more difficult to serve as an effective constitutional check on the President.  Critical checks — rejecting legislative recommendations, conducting effective oversight, and engaging in meaningful investigation of executive wrongdoing — become casualties when Congress deifies the President.

This latter point is especially important for Republicans.  They already face significant obstacles in the upcoming midterm elections.  But one of the most potent campaign themes of the 2018 cycle could be related to checks: candidates (mostly Democrats) vowing that if they are elected, they will work to be an effective check on this President and Republicans in Congress who refuse to counter him.

If Republicans in Congress are perceived as mere errand boys for the President, incapable of holding him accountable or publicly disavowing him, they will be handing their opponents a potentially powerful argument for making a change in congressional control.  Republicans who fully embrace the President — and who must commit to all of the embarrassing adulation that embracing him seems to require — may be counting on a strong economy to bolster their chances of re-election.  And running in a Republican primary without praising the President may be especially difficult for many Republicans, depending upon where they are running.  But with every word of praise, they aggrandize the powers of the presidency, perpetuate glorification of the office and of Trump himself, and make themselves increasingly vulnerable to a campaign predicated on the importance of having checks in the system.

When President Obama held office, congressional Republicans used to talk a good game about the separation of powers.  Since President Trump’s inauguration, I cannot recall the last time I heard congressional Republicans as a group advocate for a robust separation of powers.  To be sure, some have resisted the lure of a deified President Trump.  But on the whole, the separation of powers has been relegated to second- or even third-class status, giving way instead to the push for a shared legislative agenda and, worse still, party loyalty for its own sake.  Last week’s display of pathetic obsequiousness was simply the latest, and maybe most emphatic, sign yet that Republicans in Congress have abandoned their constitutional role in favor of worshiping at Trumpism’s altar.

Saipov and the federal death penalty

The Government has filed a formal criminal complaint in the case of Sayfullo Saipov, who allegedly killed eight people and injured about a dozen more on Halloween by driving his truck through a bike lane in New York City.  Although this is not an indictment, and the indictment could include additional statutory violations, the complaint focuses on one of the material support for terrorism statutes (18 U.S.C. 2339B) and the motor vehicles statute (18 U.S.C. 33).  Interestingly, the complaint also alleges a violation of section 34.  That is critical, because although the material support statutes do not provide for the death penalty, section 34 explicitly does, and here the violation of section 33 resulted in the death of a person.

Based on this, and what will almost surely appear in a future indictment, there seems to be a very high probability that the Government will seek the death penalty against Saipov.  In fact, now, I would say that it is almost certain.

Yesterday, the President tweeted that Saipov “SHOULD GET THE DEATH PENALTY.”  The President then tweeted again today about Saipov’s case, “Should move fast. DEATH PENALTY!”  (Politico has analysis here).  That is a sentiment shared by many, and under ordinary circumstances, it would be an unremarkable assertion in a terrorism case involving so many killings.  The problem, however, is that the President is not supposed to be the guy at the end of the bar.  The President oversees the federal prosecutorial infrastructure and the very people who must make the decision of whether to seek the death penalty against Saipov.  Why is that a problem?  Here is why, and it’s different than the concerns others have raised.

The federal death penalty is (or, at least should be) a point of pride for the Justice Department.  It is not used often, but when it is used, it tends to be reserved for truly heinous and highly aggravated killings.  And the Saipov case, based on what is currently known, looks to fit that bill.  Moreover, the federal death penalty provides substantial process to ensure that the decision whether to seek the death penalty is fair and objective, based on a variety of relevant factors.  Federal capital defendants receive learned counsel, and per the DOJ’s death penalty protocol, they have the opportunity to make a presentation (through counsel) to DOJ officials who review the United States Attorney’s submission of the case.  The process is not rushed, nor is it arbitrary.  Some cases, though death-eligible, may not be sufficiently aggravated to warrant a decision to seek; and even in a highly aggravated case, the Attorney General may decide not to seek because of substantial mitigating evidence, including mental state evidence.  The Department goes to great lengths to ensure that the threshold seek/no seek decision is deliberate, informed, and fair.

By stating his insistence upon a death penalty for Saipov, however, the President may be sending a signal to General Sessions that Sessions must authorize a capital prosecution, regardless of the mitigating evidence (if any).  Now, it is likely that Sessions would be inclined to seek in this case anyway, and from all public accounts of the alleged offense, it would seem to fit the mold of a federal death penalty case — highly aggravated, implicating national government interests, with minimal persuasive mitigation.  But the whole point of the protocol review process is to vet the case and determine whether the death penalty is appropriate, in light of the facts and circumstances of the individual case.

In other words, my fear is that the President has given Sessions little room on the “no seek” side of the decision-making process.  This is particularly true for Sessions, who has been publicly humiliated by the President in recent months and who functions in a world where public disagreement with — indeed, failure to worship — the President is treated as a great sin.  One might reasonably ask whether Sessions feels that he is in any position to take a different side from the President on anything.

My even greater fear is that Saipov’s lawyers will challenge the fairness and legitimacy of the review process by claiming that the fix was in and that once the President tweeted, Saipov never stood a real chance of avoiding the death penalty because the Attorney General’s hands were politically tied.  While capital defendants ordinarily do not challenge the process by which the seek decision was made, I am concerned that the President may be inviting new litigation about that process.  That is unfortunate, and unfair to the career prosecutors, as well as political appointees at Justice, acting in good faith to apply the protocol and make sound decisions in very ugly, and often complex, cases.  It is especially unfortunate in a case where the President’s sentiment was wholly unnecessary — the Attorney General may already have been inclined to favor the death penalty without prompting by the President.

I don’t want to overstate the concern.  Perhaps the President’s tweets will not matter in the Saipov case, and perhaps the legitimacy of the decision-making process will not be challenged.  After all, as I have said, it is not as if this would be a weak case for the death penalty in the absence of the President’s tweets.  Still, the President’s tweets — however satisfying to his political base — could be perceived as influencing the Justice Department’s ability give the case an objective review, and have the effect of compromising the integrity of a process that is designed to be serious, sober, thorough, and independent.  In death penalty decision-making, those are virtues more important than speed.

Given the pressures facing the death penalty in America, it is critical that the federal system be perceived as fair and just, rather than merely efficient or fast.  For those of us trying to preserve the death penalty, and its image in American law and politics, the President is making things much harder.