I'm starting a new thread here on addressing this question: Can a president be guilty of obstruction of justice for his use of official powers, like removal? Can Congress place limits on presidential power? Yes. I address a basic misunderstanding about "separation of powers." 1/
2/ Let's start with the big picture: The folks arguing "no" rely on the principle of "separation of powers." But a) many people don't realize those words don't appear in the Constitution & b) "checks and balances" is actually a more accurate description of Constn's structure.
3/ The folks arguing "no" assume that an Article II power must be "separated" from the other branches. But our Constitution is more overlapping checks and balances than formal separation. E.g., the presidential veto is a mixed legislative act...
4/ The President nominates and the Senate confirms judges. If the founders wanted formal complete separation, judges could have been popularly elected. I literally wrote a whole book about this, and argued jud. elections were a movement for sep-of-powers. hup.harvard.edu/catalog.php?is…
5/ Art III empowers Congress to create (and repeal) courts, and to create "regulations" and "exceptions" for their jurisdiction. Executive branch officials can have quasi-judicial and quasi-legislative power (and thus Congress can give them special job security vs President).
6/ Hey originalists! This is how the Federalist Papers framed this structure. Just look at the title of Federalist No.48: "These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other." Fed. No.47 makes same point. avalon.law.yale.edu/18th_century/f…
7/ Another example: Federalist No. 51 is titled: "The Structure of the Government Must Furnish the Proper eChecks and Balances Between the Different Departments." Madison's big picture point: Our Constitution is more a system of checks and balances than of formal separation.
8/ So can Congress serve as a check on presidential power? In defense of the conservatives, they say impeachment is the check. But if that's the only check, that's far too weak. And SCOTUS has rejected that narrow view of Congressional checks, as @steve_vladeck noted yesterday...
9/ At @AshaRangappa_'s invitation to us on this question, @steve_vladeck cited SCOTUS in Hamdan. When Congress is exercising its lawful powers, those powers can limit the president:
10/ Congress has the power to make bribery a crime in general. And those laws apply to everyone equally, including the president. If the president sells pardons, nominations, or firings, that's a felony. 1) The president is not above the law. 2) It's an appropriate check/balance.
11/ SCOTUS has held that Congress cannot put new limits on pardons in terms of their validity, beyond the limits already in the Constitution (Schick v. Reed). But that doesn't mean the use of pardons can't be checked by bribery laws.
12/ Even if Illinois Gov. Rod Blagojevich had explicit powers to nominate someone to fill Obama's Senate seat, he committed a crime by trying to sell the seat. A constitutionally assigned power is not an absolute power.
13/ And here's a fact that surprises many well-informed people: The Constitution contains neither the phrase "separation of powers" or anything like it, nor "removal" power or anything like it. It's a judicial construction from history and implication...
14/ So if it's clear that Congress's general bribery laws can apply to explicit constitutional powers like pardoning and nominating, surely it should be clear that they'd apply to implicit powers of removal...
15/ And if it's clear that Congress's general bribery laws apply to the merely implicit power of removal, surely it's clear that Congress's general obstruction of justice laws also apply to removals with corrupt intent to obstruct.
16 and END: If you want to read more in depth about this argument, see my blogpost from when @AlanDersh and others were floating this bad argument. And thanks again to @AshaRangappa_ @steve_vladeck @marty_lederman @rgoodlaw @renato_mariotti @NormEisen shugerblog.com/2017/12/12/yes…
17/ @jadler1969 provides an example of “impeachment is the appropriate remedy” argument here. Jonathan, I always appreciate your engagement, but @AlanDersh and Giuliani are calling for end of Mueller bc no felony.
18/ This question of whether obstruction statute applies to a president matters because it also implicates conspiracy to obstruct/aiding/abetting Trump by @mike_pence @VP, McGahn, Stephen Miller, and others in May 2017 and earlier. shugerblog.com/2017/09/04/pen…
