By Charles C. W. Cooke
Tuesday, April 23, 2019
If recent history is to serve as our guide, we should
expect the next investigation-and-impeachment drive to arrive in about two
decades’ time. Since the 1970s, Americans have enjoyed a good presidential
scandal every 20 years or so. Beware, aspirants of 2036! The southern wind doth
play the trumpet to his purposes, and by his hollow whistling in the leaves
foretells a tempest and a blust’ring day.
Whenever the next one comes, Americans must demand
sweeping changes to the way in which it is handled. More specifically, they
must demand that Congress, and not the executive branch itself, be put in
charge of the investigations. There is no unaccountable fourth branch of
government in the United States. Our repeated attempts to create one —
including over the last couple of years — have been disastrous.
The best thing that one can say about the structure of
the now-closed Mueller investigation is that it was marginally preferable to
the independent-counsel system that obtained during Bill Clinton’s
investigation and impeachment. But that is not to say much at all. The problem
with the Independent Counsel Act was that, in the words of Justice Antonin
Scalia, it aimed “to take away the power to prosecute from the president and
give it to somebody who’s not under his control.” The problem with the Mueller
investigation was that it aimed to take away the power to prosecute from the
president and give it to somebody who was under his control. Or, put another
way, that it required the head of the executive branch of government to use
that branch to investigate himself. That this yielded an array of absurd
outcomes — as well as an unhealthy dose of daily panic — should surprise
nobody.
It is a slight on neither the integrity nor the
professionalism of Robert Mueller to observe that he and his team were put in
an impossible — nay, ridiculous — position from the start. In no other
circumstance is the subject of an investigation able to fire his auditor should
he so wish. In no other circumstance is the subject of an investigation able to
retain full hiring and firing privileges over the team charged with his
evaluation. In no other circumstance is an investigator asked to proceed with
an inquiry without knowing whether his work is even allowed to provoke an indictment. By the same token, it serves as
no defense of the president to observe that he, too, was placed into a
frustrating and preposterous predicament, within which even the most innocuous
uses of his power were evaluated as potential crimes. Like Mueller, President
Trump was placed into a ridiculous position. That he behaved ridiculously was
foreordained.
That we are now ignoring the bombshell “collusion” charge
that has dominated political coverage since early 2017 and arguing instead over
the White House’s conduct during the investigation was predictable. A good
portion of Mueller’s report is dedicated to answering the secondary question of
whether President Trump “obstructed justice” during the process. But there was
never any chance that Mueller and his team would be able to meaningfully
interrogate that question in the same way that they interrogated the collusion
question. By definition, obstruction of justice is less an act than an intention; to
prove it, one has to establish that a given decision was not only taken, but
that it was taken in order to corrupt.
In a traditional criminal context, this is difficult enough; within the
American presidency, it is nigh-on-impossible. As the sole head of their
branch, presidents are able to fire pretty much anyone for pretty much any
reason, as well as to determine how resources should be used, and to decide on
what executive employees should and should not focus. With the exception of per
se illegal actions (e.g. perjury or bribery), one needs to be a mind-reader to
separate out the quotidian from the pernicious. There is a reason that we do
not let people investigate themselves.
A common refrain in the days since the report’s release
has been, “Sure, the system is flawed, but that is not an excuse for the way in
which President Trump behaved.” But the American political system is premised
upon the Founders’ understanding that human nature is immutable, that ambition
is not limited to any one era or one faction, and that our institutions work
best when they assume that men will behave badly. “Well, the president just
shouldn’t . . .” is not a workable or helpful suggestion. If the system by
which we investigate presidents relies upon those presidents “doing the right
thing,” then that system needs to change.
How? Congress must take over.
The usual response to this proposal is that Congress is
not set up to run the sort of investigation that Robert Mueller just concluded.
And perhaps it is not, at present. But, if it wanted to be, it could be.
Congress, remember, created the agency for which Mueller works. If, going forward,
Congress sought to take on those functions itself when the target was the
president, it could do so with impunity. Congress can set its own budget. It
can create its own committees. It can hire as many staff as it wishes. It can
subpoena whomever it wants, at any point, and for any reason. The possibilities
are practically endless. “We haven’t done that yet” is not a solid excuse.
Better still, as a separate branch of government,
Congress can run its investigations without any fear of executive interference
— and thus without any fear of “obstruction of justice.” Had Congress decided
to look into the Trump campaign and its relationship with Russia, nobody would
ever have asked whether its investigators would be fired or whether the White
House would limit the necessary resources or whether executive staff were
exhibiting loyalty to the country or to their boss. There would have been no
confusion as to which actions were taken in good faith and which were not. And,
most crucially of all, there would have been no fights over whether the
investigation should or should not recommend charges, or discussions about
whether a sitting president can be indicted. It has been argued by both Trump’s
supporters and critics that the core problem with the Mueller investigation was
that it focused too heavily on whether Trump had committed a crime. Because the
punishment meted out by Congress is impeachment, and because impeachment is
ultimately a political rather than a legal process, the hyper-legalism that
stained the Mueller affair would have been replaced with a set of better
questions — and, perhaps, with a set of more appropriate expectations.
Defenders of the status quo argue that, while the present
system may be clunky in theory, it works fine in practice because the various
actors are still bound by political considerations. This, of course, is
correct. Had Trump fired Robert Mueller, the ultimate fallout would have been
political rather than legal in nature. But if clear political accountability is
so devoutly to be wished for, then why not go all the way? It is difficult to
imagine a cleaner arrangement than for one branch openly to investigate
another. The actors are clear, as are their positions and their motivations.
The lines of authority are clear. And, crucially, the politics are clear. At its own political risk, Congress can begin
an investigation, and act or decline to act upon its results. At his own
political risk, the president can cooperate, stonewall, complain, protest, or
what he will. There is no risk of descending into purely legalistic thinking, nor
much risk of a perpetual flitting between legal and moral arguments.
Our political system is explicitly designed to ensure
that all power remains under the ultimate control of elected figures. That
alleged malfeasance by one of those elected figures can present lawmakers with
a series of gut-wrenching choices is unfortunate. But their discomfort does not
create an exception to this rule. There can be no such thing as an independent
investigation into a branch of the U.S. government. When the players are all
politicians, there is no way of avoiding politics.
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