So, is America already in the midst of a grave constitutional crisis, or what?
Depends on what?
On how you define “constitutional crisis”.
That’s almost illuminating enough to qualify you for cable news punditry.
Now now. Bear with me.
Oh, by all means, do go on.
So, I’d argue that the term “constitutional crisis” is generally used to mean one of two somewhat different things:
- The occurrence of a political problem, some deadlock, transgression or unforeseen development, for which the constitution simply provides no clear answer, and can be of no assistance to the actors.
- The breaching of norms or clear prohibitions which are so transgressive as to require the actors to employ the “break glass in case of emergency” provisions of the constitution, and pull the handle, as it were – the constitution has a curative mechanism, to be used when things get wildly out of hand.
In the first category I’d place something Like Mitch McConnell’s dastardly refusal to consider Merrick Garland as Obama’s nominee for the Supreme Court. While the Constitution is clear that the President is the one who nominates people to fill vacancies, it also says that nominees need to be confirmed by the Senate, who may offer advice, and must finally consent. Nothing expressly deals with the Senate simply refusing to offer advice or consent with respect to anybody at all, nor does anything mandate any particular size for the Supreme Court itself, allowing Mitch to argue that the Court could go along just fine with a notional vacancy, really just one fewer judge than before on a bench that isn’t required to have nine members in the first place – the President could thus nominate whomever he pleased, and then the Senate wouldn’t consent, full stop. Now what? Deadlock. In this case, a deadlock that allowed Mitch to, in effect, steal a seat on the Supreme Court, and hold on tight to it until there was a Republican President to whom he could hand it.
Or, if you want a really clear case, the biggest and best example is the secession that led to the Civil War. The Constitution has no exit mechanism.
The Watergate affair provides a good example of the second type. Nixon was an evil criminal, Congress caught on, and the emergency handle was pulled. The impeachment machinery was chugging along rather smartly, all gauges in the black, when Tricky Dicky was persuaded he’d best resign before Congress gave him the boot in just the worst way. The Constitutional mechanisms functioned as intended, crisis averted.
If you define “constitutional crisis” the first way, as one in which the constitution supplies no help, then I guess the Americans aren’t in one at the moment, the Supreme Court chicanery being over and done with. It seems to me, though, that they’re definitely in the middle of the second, “Watergate” type of crisis. Let’s take stock:
- The President is in open and notorious breach of the “emoluments” clause of the Constitution.
- The President has appointed as his acting Attorney General a lackey whose role is to obstruct justice, and stop the Mueller Probe from bringing down the President and his family, and done so in a way that seems to violate the “appointments” clause of the Constitution, which requires Senate consent for anyone to act in the capacity of “Principal Officer”.
- CNN is suing the president for banning its reporter from White House press briefings, on the well-founded grounds of a violation of the First Amendment.
- The President threatens the First Amendment almost daily, slandering the established press as “enemies of the people” and inciting hatred against journalists.
- The entire Administration, from the West Wing to most of its Cabinet offices, is so rife with corruption and illegality that a proper listing is beyond the scope of this posting.
- Whatever Mueller finds out, the President already admitted to obstruction of justice on national TV, saying he fired the FBI Director because he wouldn’t drop “this Rusher thing, with Trump and Rusher”.
- The President’s behaviour at home and abroad is routinely alarming and erratic, contrary to American interests, and prima facie disqualifying – and would have been to Madison, let alone to the modern observer, who sees the President not as the leader of an agrarian nation with limited involvement in world affairs, but a nuclear superpower that could eradicate all multicellular life in an afternoon, should the President do something batshit crazy.
I could go on. That’s not the half of it, really, but you get the idea. We are well into “high crimes and misdemeanours” territory already, even before we get anything from Mueller. Trump should already be under impeachment. If Mueller’s investigation is shut down, that will be further cause for removing the President, and if Mueller’s report ever sees the light of day, I’ll be gobsmacked, astonished, if he doesn’t find corruption and criminal activity under every rock, and many more instances of clear obstruction of justice, and I think it’s at least 50/50 that he can demonstrate outright conspiracy between the Trump campaign, its cut-outs, and Russian dirty tricks operatives acting under the direction of Vlad the Impaler over there in Moscow, via Useful Idiot and Wikileaks Turd Julian Assange.
It all sounds reasonably like a crisis to me, and happily, the Constitution has just the thing. (Yay!) It’s time to break the glass and pull the handle.
Which brings us to the sticking point. The Republicans won’t permit it. The House may vote to impeach, but the Senate won’t convict, and Trump will be able to continue on his merry way, grifting, lying, and tearing everything down to the ground as he goes. This is a rather wicked variation on the second variety of crisis: blatant violations of sacred norms and the express law of the land, including the Constitution itself, which the Constitution very much could, yet still doesn’t, address, simply because no one will use the tools it provides.
Which actually, when you think on it, brings us fully around the loop to the first kind of constitutional crisis: the Constitution doesn’t say what happens if its emergency mechanisms ought to be triggered, but aren’t. The Framers clearly assumed that if the President was straying as far from the fold as Trump is every day, then Congress would act; you didn’t need anything that addressed the contingency that they refuse to act. Thus they didn’t say something along the lines of “a President, whether or not impeached by the Congress, shall in any case be subject to criminal prosecution when the circumstances merit, as determined by the relevant officials of law enforcement”.
Geez, that would have been nice. But they didn’t. They did however say something very close:
“Judgment in cases of Impeachment shall not extend further than to removal from Office … but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”
— Article I, section 9, U.S. Constitution
You can read this to mean that only after removal from office can a President be indicted for anything. That seems a little strained to me. I think all it means is that Congress, a partisan body, can’t throw the bum in the slam, but nobody should delude themselves that impeachment is the only thing the ne’er do well can expect. My position is that there’s plenty of scope for arguing that a general residual power remains with law enforcement to prosecute crimes throughout the term in office, but noooooooo, the Justice Department, in its bone-headed lawyerly way, has long since concluded that since the Constitution prescribes one remedy for Presidential malfeasance – impeachment – it must be taken to have ruled out any other remedy, as the language quoted above, in this view, would also indicate, thus rendering the President immune to prosecution as an ordinary criminal by the ordinary prosecutorial machinery.
This is why we keep hearing that odd turn of phrase, “unindicted co-conspirator”, i.e., “other criminal we can’t touch”, just as we did in the Watergate era, when this became almost the default description of President Nixon. Trump’s minion/bagman/fixer Michael Cohen has already been convicted of crimes related to hush money payments for which Trump, identified in the pleadings as “the candidate”, is cited as a co-conspirator, and is therefore equally guilty. Can’t touch him.
No, really. This bears emphasis. The Justice Department has concluded that the intent of the Framers was that a President could lie cheat and steal from dawn to dusk, and the only remedy is impeachment – failing which he skates, not forever, but at least for as long as he’s President. This is of course ludicrous, as by now should be all too obvious. The Framers surely meant for there to be an extra remedy, impeachment, when otherwise there might be no other legal way to deal with the scoundrel. Sure, “high crimes” might be involved, (which doesn’t mean what the modern reader thinks it does)*, but so might the undefined “misdemeanors”, and if you look at the Federalist Papers, Madison et.al. clearly meant this to go beyond criminal or civil offences and into gross incompetence, mendacity, or actions contrary to the common good. There’s no reason to believe the intent was to simultaneously immunize the President against any other legal recourse, no matter what he did.
Perhaps only lawyers could reach such a conclusion, given the potential absurdities (by applying, if you’re keen on the details, what seems to be a version of the rule known in statutory interpretation as the “exclusio” principle, from the Latin expressio unius est exclusio alterius, “the explicit mention of one thing is the exclusion of the other”), (yes, you’re correct, it’s bullshit). This is, of course, why Brett Kavanaugh was Trump’s golden boy – he believes most fervently in this notion.
O.K., then. Deadlock. Now what?
Nothing, apparently, that’s what. Maybe see you in court when your term is up, Donny boy, but meanwhile, have at it!
Wait, though. Can that really be true? If Mueller, say, is able one way or another to put a report before Congress that substantiates some truly heinous corruption and collusion with the Russians by Trump and his campaign, will the Republicans really just sit on their hands? Like, say the paper trail clearly proves that Trump laundered money for the Russians through his real estate holdings, in concert with Deutsche Bank, and in return got illegal Russian help defeating Hillary, help for which he, in return, promised a pro-Russian US foreign policy. Say. Just hypothetically. What if they had emails, intercepted voice communications, recorded conversations, the lot? Would the Republicans still just sit there doing their “see no evil” routine?
Yes. Yes, I believe they would.
What!!?? You dragged us through all of this turgid analysis just to tell us that we’re screwed, Trump wins, farewell to the Republic, and wither the noble experiment in democratic self-government begun on these shores 242 years ago by the children of the Enlightenment?
Yup. Yup, I guess I did.
Geez, that sucks.
*From Wikipedia: Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.