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America’s On A Collision Course With A Constitutional Crisis

Is the president above the law?

There is a decent chance the United States faces a Constitutional crisis in the near future. A question looms: Is the president above the law? We’ll probably be forced to answer it soon.

I wish I were exaggerating. It would be comforting to think of this as another Information Age hyperbole. But it’s not.

The Trigger

On Monday, October 30, Trump campaign chair Paul Manafort and his deputy Rick Gates both got indicted. They’re accused of:

  • Acting as unregistered agents of the Ukrainian government and the Party of Regions, a pro-Russia political party in Ukraine.
  • Laundering up to $75 million.
  • Conspiracy against the United States.
  • Lying to federal investigators.

The charges against Manafort mostly focus on activity prior to joining the Trump campaign, though the indictment says he continued secretly working for foreign governments up through 2016. This means the best possible pro-Trump defense is that Manafort’s illegal activity took place before he started with Trump, and Trump was too stupid to realize he was hiring a criminal to run his campaign.

Even bigger news: Trump campaign foreign policy official George Papadopoulos plead guilty to lying to federal investigators. His indictment discloses emails showing extensive contact with the Russian government.

Papadopoulos’ communications show he:

  • Knew of Russian hacks against Democratic targets — likely the DNC and Clinton campaign chair John Podesta—before they became public.
  • Fielded requests from the Russian foreign ministry.
  • Said Trump could not personally participate in meetings with Russian officials.
  • Volunteered to meet with Putin representatives.
  • And told representatives of the Russian government he got permission from senior Trump campaign officials to meet with them.

The indictment does not mention which senior officials received these emails from Papadopoulos, but the Washington Post identified them as Manafort, Gates, campaign national co-chair Sam Clovis, and campaign manager Corey Lewandowski.

As with previous revelations pertaining to the Trump-Russia scandal, this information does not directly implicate the president. However, it adds to the pile of evidence indicating coordination between the Trump campaign and the Russian government.

This makes for another bombshell on top of Donald Trump Jr.’s emails excitedly accepting Russian government representatives’ offer to provide dirt on Hillary Clinton. After those emails became public in July, I stopped being a Trump-Russia skeptic, writing:

One could assume this is the most damning evidence that will ever surface, and that Special Council Robert Mueller and his team of star investigators and prosecutors won’t find anything else untoward regarding Trump or his campaign. But it’s more plausible there were, at the very least, some additional attempts to collude. Perhaps some of them were successful.

The Papadopoulos emails show additional attempts — though, like Don Jr.’s emails, they do not prove the efforts succeeded — and there’s no reason to assume this is it.

The Mueller investigation is far from over. Papadopoulos’ plea indicates he’s been working with federal investigators for some time, presumably providing information on his superiors, perhaps wearing a wire or recording phone calls.

Trump and his allies are currently pretending Papadopoulos was just a low-level volunteer. But here he is at a March 31 National Security Meeting.

Picture from Trump’s Instagram feed

Papadopoulos is the young guy in the middle on the left. Trump and Jeff Sessions are at the heads of the table. Whatever his influence, Papadopoulos clearly interacted with top officials.

Like I said in the aftermath of the Don Jr. revelations, it’s possible nothing else ever comes out. But it’s safer to assume there’s more.

Exactly what happened remains unknown. But available evidence indicates elements of the Trump campaign actively sought to work with the Russian government in various illegal ways to influence the election.

America’s Future

To be clear: there isn’t any publicly available evidence implicating the president. And there may never be.

But we’re still headed for a Constitutional crisis.

Trump will probably take action to stifle Mueller’s investigation. The president previously tried to shut down Justice Department inquiries into Russian electoral interference by firing FBI Director James Comey. As Trump said on national television in an interview with Lester Holt:

When I decided to just do it, I said to myself, I said ‘you know, this Russia thing with Trump and Russia is a made-up story.’

That led to a debate over whether the president obstructed justice. But that question was tabled when Deputy Attorney General Rod Rosenstein appointed Mueller as special council. (Attorney General Jeff Sessions had recused himself due to his role in the Trump campaign).

Mueller’s mandate is to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” as well as “any matters that arose or may arise directly from the investigation.” Charging Manafort and Gates with crimes committed before they joined the Trump campaign indicates Mueller intends to follow that broad mandate.

The logic behind this is twofold:

  1. People who commit crimes should be brought to justice.
  2. Charging Trump campaign officials encourages them to cooperate with the investigation — like Papadopoulos — making it easier to get to the truth.

It’s a near certainty more will be indicted. And it wouldn’t be surprising to see charges filed against members of the president’s family, such as Donald Trump Jr., who met with representatives of the Russian government to acquire information that could damage Hillary Clinton, or Jared Kushner, who repeatedly failed to disclose meetings with prominent Russian officials.

This raises the possibility of three Constitution-testing scenarios.

1 — Trump Fires Mueller
He can’t do this directly — that power rests with the Attorney General, or in this case, Rosenstein as acting Attorney General — but Trump can make it happen. He just needs to follow Richard Nixon’s “Saturday Night Massacre” playbook.

In 1973, Nixon wanted to fire special prosecutor Archibald Cox, who was investigating Watergate. His Attorney General refused and resigned. So did his Deputy Attorney General. Solicitor General Robert Bork then became acting Attorney General and agreed to fire Cox.

Trump can order Rosenstein to fire Mueller, and if Rosenstein refuses, Trump can fire him and keep firing people until he gets to an acting Attorney General who’ll comply.

Congress reacted negatively to the Saturday Night Massacre, and it marked the first time a plurality of Americans favored impeaching Nixon. Nine months later, the House Judiciary Committee approved its first articles of impeachment.

However, if Trump does something similar, there’s no guarantee Congress or the public will react the same way. Democrats would be angry, but in this hyperpartisan, post-truth environment, Republicans might rally around the president. Fox, Breitbart, and other-pro Trump media would vigorously spin the story. Many who get their news from those outlets would buy whatever they’re selling, no matter the facts.

The groundwork’s already been laid. For example, in an October 25 editorial, The Wall St. Journal called on Trump to oust Mueller.

If Trump fires the special prosecutor, and Congress lets it go, then the president is above the law, able to obstruct justice at will.

2 — Mass Pardons
Perhaps, instead of firing Mueller, Trump just pardons whoever the special prosecutor indicts. He could even do it without waiting to see if they’re convicted in court.

Trump already did something like this, pardoning Arizona sheriff Joe Arpaio, who was convicted of contempt of court for refusing to follow judicial orders to stop racial profiling. Many Constitutional scholars believe the Arpaio pardon constituted abuse of power — an impeachable offense.

In Arc, Varad Mehta argued the pardon violated a central American principle, articulated by John Adams, that ours is a nation of laws, not men. If the justice system cannot hold law enforcement officials in contempt for blatant, repeated, unapologetic violation of court orders, then those officials are effectively above the law.

Pardoning those charged in the Russia investigation would further damage the rule of law. It would indicate justice is a matter of presidential fiat. If you help the president, or you’re in his family, then you can commit federal crimes without consequence.

As with scenario #1, Congress could call this obstruction of justice and abuse of power, and begin impeachment proceedings. But there’s a good chance they wouldn’t.

In an October 29 op-ed, prominent Republican lawyers David Rivkin and Lee Casey argued that Trump should pursue a mass pardon strategy. That means, if Trump does it, partisan lawyers will be ready with legal arguments to complement Trump supporters’ pressure on Congressional Republicans to do nothing.

3 — Mueller Files Charges Against Trump
It’s possible Trump didn’t break the law. And even if he did, it’s possible Mueller does not discover enough evidence to prove it. However, it’s also possible the investigation uncovers proof Trump is guilty of conspiracy and numerous other crimes.

But can a sitting president be indicted? The balance of legal opinion seems to answer “no.” But, as with every legal question, some lawyers argue the other side. The real answer is “don’t know.” No law explicitly addresses it, and it’s never been tried before.

Can the president pardon himself? On this one, the balance of legal opinion also seems to say “no.” But, as with the previous question, it’s unclear, and never been tried.

Mueller might avoid this dilemma at first by presenting evidence to Congress rather than trying to file criminal charges. However, if Congress does not impeach in response, it would place the president above the law. And if Mueller does file charges, there’s no way Trump accepts it.

The Courts Won’t Fix It

If any of these scenarios occur, lawsuits will probably follow. However, the Supreme Court would likely note that the Constitution includes a clear remedy in the form of impeachment, and the Court almost always declines to adjudicate disputes between the executive and legislative branches. Issuing a ruling would therefore create a different type of crisis.

The only way America avoids a crisis is if Trump allows the Mueller investigation to run its course, accepting whatever happens in the trials as a legitimate judicial process. But the chances of that aren’t high.

In that case, it’ll be up to Congress. And yes, that should make you nervous.



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Nicholas Grossman

Nicholas Grossman

Senior Editor at Arc Digital. Poli Sci prof (IR) at U. Illinois. Author of “Drones and Terrorism.” Politics, national security, and occasional nerdery.