From my distant school days, there are few principles of civics and government more memorable than the concept of “checks and balances.” Because the Constitution divided the government into three branches — legislative, executive, and judicial — the founding fathers thought it wise that no one branch becomes more dominant than another. They sought a balance of power among them.
Hence, the legislative branch makes laws; the executive branch through the president can veto laws (though the legislative branch can override the veto with enough votes); and the judicial branch can ultimately declare whether such laws are constitutional.
On the other hand, the president can also make laws by declaring executive orders. However, the judicial branch can declare those orders and any of Congress’s laws unconstitutional. Yet it’s the president who nominates the top members of the judicial branch: Supreme Court justices, court of appeals judges, and district court judges; and the legislature that approves them.
To ensure that the executive and judicial branches are free of corruption and criminal activity, the legislative branch is also charged with congressional oversight. It uses hearings and subpoenas as its tools, and ultimately has the power to impeach the president and members of the Justice Department and remove them from office.
Checks and balances. That’s what makes our federal government work — except when it doesn’t because of the dysfunction and obfuscation of one of the branches. That’s what we have now, and it has become a constitutional crisis.
Interpreting the Mueller Report as if it’s tantamount to Monopoly’s “Get Out of Jail Free” card, President Trump has now decided that any and all future investigations are off the table. He has pressured his first White House counsel to deny the obstruction implications of his testimony to Mueller, instructed staff not to testify before any congressional committees, and to ignore their subpoenas. He has also told them to stonewall any requests for documents, including his tax returns, and has initiated lawsuits against banks to prevent them from providing information about the Trump Corporation’s dealings and financial history. Why is it that I can hear the theme from “The Godfather” playing softly in my head?
Believe me. I desperately want the Mueller Report to become ancient history and put on a shelf somewhere with the Pentagon Papers. But there are just too many loose ends that Mueller left dangling since he was compelled to follow the directive in a 2000 Department of Justice opinion that “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
The DOJ document asserting that the president can do no wrong while in office is derived from Article II of the Constitution that acknowledges the president’s essential role in running the government and serving as commander-in-chief of the armed forces. Alexander Hamilton described this in Federalist Paper 70. Far-right interpreters of the Constitution, like former Supreme Court Justice Antonin Scalia and Attorney General William Barr, claim Article II makes the president a unitary executive, that is, all executive branch authority rests with him and is not shared with other executive officers — not even the vice president. This ultimate power brings blamelessness to the president’s deeds but also increases his accountability because, as the sign in President Harry Truman’s office stated, “The buck stops here!”
However, the president is not a monarch and above the law. In Federalist 65, Hamilton explains that the chief executive can be impeached by Congress for misconduct and is “liable to prosecution and punishment in the ordinary course of law.” Of course, the way that misconduct is established is through hearings, subpoenas, witnesses, and by examining documents — all being blocked by Trump, who is acting every bit the king.
What complicates all of this is Barr’s broad whitewash brush that dripped “no collusion and no obstruction” on the national record. He unblinkingly said this even though the Mueller Report describes how Trump and his staff knew of, encouraged, and benefited from the efforts of a hostile foreign power to subvert democracy and get him elected. And Barr said this even though the report describes a “pattern of conduct” to obstruct the probe. Mueller catalogues 10 such instances and writes, “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment."
More than 450 former federal prosecutors who worked in Republican and Democratic administrations gave Mueller some help on May 6. They signed a letter declaring that were Trump not president, the report’s findings would lead to “multiple felony charges.”
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The next move belongs to Congress. More subpoenas and some fines and prison time may be in the offing, and perhaps even impeachment. That’s how it’s supposed to work. Checks and balances.