America’s civic education continues. Although much of what we have endured recently is not particularly good news for the Nation, it should at least be heartening that nearly 20 million people watched the (underwhelming) Comey hearing. If only that many Americans took such an interest in congressional hearings more generally.
We have also heard lately about the theory of the unitary executive, which some observers have used to explain why the President’s actions with respect to James Comey are neither criminal nor otherwise improper. Former Speaker Newt Gingrich asserted something like this recently when he said that the President “cannot obstruct justice,” citing the fact that the President is the chief executive (as others have duly noted, such as in the linked article from The Hill, Gingrich voted to impeach President Clinton on obstruction of justice grounds). Gingrich’s quote calls to mind President Nixon’s 1977 assertion to Sir David Frost that, “when the President does it, that means that it is not illegal.”
At its core, the unitary executive posits both an obvious textual notion (that the executive power is vested in “a” president) and a structural one (that the president enjoys all executive power and thus controls anyone who assists him in exercising such power). But the unitary executive model does not really answer two critical questions that have been raised by the Trump-Comey saga: first, when, if ever, does the exercise of constitutional power by the president amount to a punishable crime?; and second, at what point does the exercise of a constitutional power constitute an abuse of such power? These two questions are at the heart of a distinction that has become lost in the debate over criminality, and that is the distinction between violations of the existing federal criminal law and the political world of impeachable offenses (see my earlier post here).
Because the President has the power to “take care that the laws be faithfully executed,” he has the power to determine who will be prosecuted and investigated. Therefore, as some have argued, the President had the authority to instruct Comey not to continue pursuing former National Security Advisor Mike Flynn, and doing so cannot be obstruction of justice. And, the argument continues, because the President has the appointment power, as well as the Take Care Clause power, firing the FBI Director also cannot be obstruction. I have before elaborated (in the above linked post) upon the obstruction statutes and explained why I think reliance on those statutes is problematic in this case. But let’s set aside the applicability of the statutes as a matter of statutory interpretation and federal prosecutorial practice, and focus instead upon the question of how far the President’s power extends. Do his motives matter when exercising his powers?
Suppose, as a hypothetical example, that the President gathered the FBI Director and Attorney General in the Oval Office and gave the following order, pursuant to his Take Care Clause powers: in an effort to root out terrorists, the FBI shall enter and search, without a warrant and without any particularized suspicion, the home of any Muslim living in the United States. The FBI and AG agree and the order is carried out. Such action would implicate not just the Fourth Amendment, but also the federal civil rights statute relating to willful deprivations of rights, 18 U.S.C. 242, as well as the civil rights conspiracy statute. 18 U.S.C. 241. Is the President immune from subsequent criminal prosecution merely because he has the power to direct federal investigations and prosecutions? Could the President be impeached for issuing such an order, on the ground that even though he has the power to direct investigations, this was a serious abuse of that power?
Let’s take another example. Suppose the President agrees with a representative of Defendant D that the President will order the Justice Department not to prosecute D for a crime that D has committed. In exchange for that official act, the President accepts from D one million dollars. Is this conduct bribery, notwithstanding the fact that the official act for which there is a quid pro quo is a constitutional power vested in the President? Is it impeachable? (remember that the Impeachment Clause of Article II, section 3 specifically lists bribery as impeachable).
Or, to take the example of another power vested solely in the President — the power to grant reprieves and pardons for offenses against the United States — suppose the President granted a pardon to D in exchange for a payment of one million dollars. Is the President’s motive for the official act of granting the pardon irrelevant simply because the corrupt motive, and the quid pro quo, are tied to the exercise of a constitutional power vested in the President?
I ask these questions because I think it is important to note that even if we accept the unitary executive model, and even if we believe that directing criminal investigations and prosecutions is a core executive function over which the president should have control, we can still acknowledge that what motivates a President in carrying out that function could still have legal significance. In my bribery examples, for instance, the power of ordering the DOJ not to prosecute, or the power of actually granting the pardon, are not, without more, the problem; the problem is that those exercises of power were intended to facilitate bribery. Indeed, because bribery requires an official act, it seems clear from its inclusion in the Impeachment Clause that the Framers understood that a President can still be held legally accountable even when the offense arises from an exercise of official power.
It may very well be that President Trump has committed neither a crime nor an impeachable offense. But whether he has committed either cannot, I think, depend merely upon whether his action was based on the exercise of a constitutional power. Perhaps the President’s state of mind matters. After all, implicit in an “abuse of power” is the existence of an official power that can otherwise be legitimately used.
Which leads to a final point about the distinction between criminality and impeachment. Much of the attention will fall upon the Special Counsel. But the congressional investigations here are also important because, unlike the Special Counsel’s investigation (which is criminal in nature), the Congress can gather facts and evidence regarding abuses of power that may not meet the defined elements of a crime or be prosecutable. The congressional investigative power is at once broader and more narrow than the Special Counsel’s work — Congress cannot criminally prosecute the President, but it can engage in oversight of the executive, which includes the power to impeach and convict. That distinction is critical if one assumes that a sitting President cannot be criminally prosecuted. Problem is, would a Republican Congress ever allow impeachment to proceed? To answer that, we need to take a deeper dive into the existing dynamics of a Senator or Representative’s institutional loyalty to Congress, rather than to the President or the Party.