(THREAD--44 TWEETS). A spate of articles and threads appeared yesterday in response to the bombshell NYT article reporting that in June Trump ordered Don McGahn to fire Mueller (which McGahn refused to do).
1/ Here is what I have concluded from reading a number of these threads and articles. (See the end of this thread for links to the references I use and refer to.)
2/ The consensus of legal experts is that Trump has obstructed justice, and that Mueller has no doubt concluded the same (perhaps with additional evidence that we have not yet seen).
3/ So what now?
4/ The legal argument that Mueller cannot indict Trump as the sitting president strikes me as perfectly compelling.
5/ For starters, I note that, as Ronald Rotunda has pointed out, “Supreme Court cases going back 150 years emphasize that the president retains complete authority to control federal criminal prosecutions.”
6/ This doesn’t mean, however, as Dershowitz has famously concluded, that Trump cannot be guilty of obstruction of justice (at least so long as he is exercising the constitutionally granted powers of his office).
7/ This is an incredibly fatuous conclusion for Dershowitz to have drawn. (Abramson calls it the Dershowitz Defense, and contends--and so far as I know correctly--that no serious legal scholars support Dershowitz on this view.)
8/ I myself have demolished the Dershowitz Defense in my thread on 6 Dec 2017, where I point out that the fact that the president is given unlimited *power* to hire and fire does not mean that he has the unrestricted *right* to do so.
9/ He certainly doesn’t have the right to do so if he has a “corrupt intent.”
10/ The Dershowitz Defense rests on untenable, extremist interpretations of the theory of the unitary executive, according to which the president has plenary authority to control every aspect of the executive branch.
11/ This doctrine is untenable for a very simple reason: the Constitution gives Congress the power to impeach and remove the president, but does not give the president the power to impeach and remove Congress.
12/ So far from granting vast unitary powers over the executive to the president that the Dershowitz Defense requires, the Constitution states clearly that, ultimately, Congress holds all the cards, making it unmistakably the strongest branch of government.
13/ Under the Constitution, the president administers the laws (including the operations of the departments and agencies established by Congress), and Congress can hold the president accountable for failing to administer those laws faithfully.
14/ Since all this is perfectly clear and unquestionable constitutional law, the Dershowitz Defense on obstruction of justice, which rests on its denial, is untenable.
15/ Congress has unmistakably, by its past actions (in Watergate etc.), established the independent power and authority of the DOJ to conduct investigations into possible criminal acts by the president.
16/ At any point, a president can challenge and even openly defy that authority, but if a president does so he can be impeached (which brings us back to the fundamental point made earlier).
17/ However, a conclusion that the president DID obstruct justice or commit any other criminal acts challenges the executive authority of the president in the sharpest possible way--
18/ and logically requires an invocation of impeachment authority by Congress, not the indictment authority of federal prosecutors.
19/ So we are led to the conclusion that the Department of Justice cannot indict the president for obstruction of justice (or any other crime).
20/ Otherwise, there’s a contradiction, similar in some ways to the logical paradoxes of self-reference: one cannot grant the president controlling authority over x (where x is any employee of the DOJ), and then grant x the authority to actually INDICT the president.
21/ We then arrive at the place that could have been predicted in advance: the president can obstruct justice (this is perfectly clear);
22/ he cannot be INDICTED by the DOJ; but he CAN be impeached and removed from office by Congress. So ultimately, this is about IMPEACHMENT.
23/ The remaining problem is this: Since it is now virtually certain that Mueller will write a report for Rod Rosenstein stating that he has found Trump guilty of obstruction of justice, how does Mueller get those findings and determinations to the public?
24/ The problem here is that Mueller does not himself have the authority to release his report publicly.
25/ Rod Rosenstein does have that authority, however, and would surely release Mueller’s report--at least to Congress, which would undoubtedly in turn compel a public release.
26/ If Trump fires Rosenstein before Mueller writes his report, there are other ways for Mueller to get his report out, though they are considerably less straightforward and satisfactory than just having Rosenstein release it.
27/ Renato Mariotti said in his Politico article yesterday “It’s hard to believe Mueller couldn’t find a way to present a report of his findings if he wanted to do so,” and he is surely right about that.
28/ (For detailed legal analyses of some of the other ways Mueller could get his report out, see the articles in Just Security by Ryan Goodman of the NYU Law School.)
29/ But the bottom line is simply this: Trump has obstructed justice; Mueller will write a report (probably sooner rather than later) reaching that conclusion; it will be made public; obstruction of justice is an impeachable offense;
30/ so the House of Representatives will inevitably (and probably sooner rather than later) have to consider the impeachment of President Trump.
31/ RussiaGate is now entering a new and really explosive phase.
32/ Buckle up, people. This is going to get really wild.
33/ Here are 11 references:
34/ Congressional Research Service: Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities tinyurl.com/y9u6k3u5 [17 Apr 2014]
35/ Ronald Rotunda (WaPo): The president can be indicted — just not by Mueller tinyurl.com/ybcwrv8u [27 July 2017]
36/ Ryan Goodman and Alex Whiting (Just Security): How Mueller Can Make the Grand Jury Report Public or Hand it to Congress tinyurl.com/y9ssotyw [14 Aug 2017]\
37/ Ryan Goodman and Alex Whiting (Just Security): An Untold Option for Mueller: Grand Jury “Presentment” as an Alternative to Indicting Trump tinyurl.com/ydynp7uc [16 Aug 2017]
38/ Ryan Goodman (Just Security): Mueller Has Authority to Name President Trump as an “Unindicted Coconspirator” tinyurl.com/y86ysl7g [29 Oct 2017]
39/ Thomas Wood (thread): tinyurl.com/y7p4d877 [6 Dec 2017] Citing, inter alia, the Congressionarl Research Service [CRS “Obstruction of Justice,” 17 Apr 2014, vide supra]
40/ Renato Mariotti (Politico): It’s Now Likely Mueller Thinks Trump Obstructed Justice tinyurl.com/y7x5lkzg [26 Jan 2018]
41/ Jeffrey Toobin (New Yorker): The Answer to Whether Trump Obstructed Justice Now Seems Clear tinyurl.com/y8a5lpg2 [26 Jan 2018]
42/ Eric Columbus (thread): tinyurl.com/y8eqf44g [26 Jan 2018]
43/ Seth Abramson (thread): tinyurl.com/y75r57bp [26 Jan 2018]
44/ Wikipedia: “Unitary executive theory.” [Accessed 26 Jan 2018]
