Sunday, June 3, 2018

Executive Power Play


Thanks to The New York Times, we now have a copy of the "confidential" letter Donald Trump's legal team wrote and hand delivered to Robert Mueller. It was 20 pages long and, setting aside the obvious smears against the FBI and his own Justice Department; the outright lies, such as denying Russia was the reason for firing James Comey when Trump admitted as much in an interview with Lester Holt; and the admission that Trump did indeed dictate the statement regarding his son's meeting with Russian officials at Trump Tower after denying it for months, there was one paragraph in particular that stood out as deeply troubling and should be of grave concern to anyone who cares about the future of this Republic.

It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.

Translation, he couldn't have obstructed justice because he is justice personified; but if he did, it still doesn't matter because he can't be touched; and if anyone tries to come after him, he can fire that person, kill the investigation and pardon anyone he feels like, up to and even including himself.

Everybody got that? Good, because what you just read amounts to nothing less than a middle finger to the very core of our system of justice. Some have said that the letter is more a political stunt than a legal maneuvering. I think it's both. On the one hand, it serves up the requisite red meat for his base - as if watching Rudy Giuliani and Sean Hannity humiliate themselves on Fox News weren't enough of an aphrodisiac for these people. On the other hand, however, I think from a legal perspective, it's setting the stage for what is likely to be a showdown in the very near future. 

It's clear Trump's lawyers expect Mueller to issue a subpoena to force him to testify and this letter serves as a notice that if that happens Trump will take executive action to ostensibly end the investigation. Wow, not even Nixon had this kind of chutzpah.

The legal argument that Trump and his lawyers are making basically comes down to this: the President of the United States is above the law. The brazenness of such an assertion is unprecedented in American history, and while legal scholars disagree on the merits of such an argument, there is little doubt that we are on the precipice of a Constitutional crisis.

After reading most of the arguments for and against, I honestly don't know how this will end up. It's clear this Congress will do nothing to stop Trump, so impeachment is off the table; and even if Democrats take the House, they won't have the 67 votes necessary in the Senate to convict him.

It's obvious Trump's lawyers know what Mueller knows. This letter also makes obvious that they are willing to use any and all legal means available to them to ensure this president survives, regardless of what it might do to the country.

The Founders might have envisioned someone like a Donald Trump becoming president, but they never envisioned that the system of checks and balances on his authority would be so impotent. It would be the ultimate irony that in a country whose criminal justice system would rather let ten guilty people go free than incarcerate a single innocent one, a would-be tyrant might very well get away with murdering a democracy in order to become its first dictator. 

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