After almost 231 years of scrutiny, it’s hard to imagine there’s much left in the U.S. Constitution that hasn’t been fully explored. But the special counsel’s probe into Russia’s interference in the 2016 election, and whether anyone from Donald Trump’s presidential campaign cooperated with that nation, is raising major legal questions that this country has rarely, if ever, faced.
Many questions involve the scope and limits, if any, on the chief executive’s powers. President Trump and his legal supporters have argued publicly that the leader cannot be subpoenaed or indicted while in office; that a president can start or shut down any federal investigation, including one into her or his own conduct; and that a president may pardon anyone for any reason anytime, even himself or herself. The Russia investigation has cast a light on apparent gaps in the Constitution, including such quandaries as what happens if a president ignores a Supreme Court order, or what check is available for a Congress that abdicates its watchdog role over the executive branch.
To gain a better understanding of some of the issues increasingly in play, the Gazette interviewed Harvard faculty members who have expertise in constitutional law and legal history, democratic and authoritarian governments, and American politics. Here’s what they had to say.
Mark Tushnet, Michael Klarman, Steven Levitsky, Steven Jarding
GAZETTE: Our system of checks and balances has worked largely as planned for the last 230 years. But now it appears that the president is eager to test the limits of executive power. Because past presidents largely abided by not just the office’s constitutionally mandated boundaries but by generally accepted norms of conduct, did we perhaps overestimate the framers’ foresight to head off a leader apparently intent on challenging the idea of co-equal branches of government? If yes, what did they get wrong, and what could fix it?
Mark Tushnet (’67, William Nelson Cromwell Professor of Law at Harvard Law School): The Constitution was designed to do a reasonably good job of filtering out demagogues and other “unfit” characters from high office. But the Founders knew that the filtering process would be imperfect and that sometimes people of unfit character could rise to the top. Their remedy was the separation-of-powers system, in which the self-interest of people in each branch would lead them to oppose overreaching by someone in the others. They knew of the possibility that political parties would develop, but they thought their design would discourage them. (This was especially true of the design of the Electoral College, which was expected to generate local and regional “favorite sons,” from among whom the House would pick.) But nationally organized political parties developed rather quickly after the national Constitution took effect. Still, for a long while the parties were coalitions of locally based parties, and cross-party alliances could occur.
The novel development, over the past generation or so, is of highly polarized and internally unified parties, which leads party members to act in the service of their party — to defend an overreaching president of their party, for example. There are few obvious structural “fixes” for this problem. Electing the president by national popular majority vote might help, as might various forms of shifting away from elections in which the winner is the person with a plurality of the votes (single-transferable voting, and other devices). But, mostly the remedy lies with political leaders putting forth programs that will persuade voters that we should abandon our current polarized positions.
MICHAEL KLARMAN (Kirkland & Ellis Professor of Law at Harvard Law School): As James Madison famously explained in the Federalist No. 51, the practical efficacy of the Constitution’s system of separated powers and checks and balances depends on the assumption that the government’s various institutional actors will have personal incentives to constrain one another’s power (ambition counteracting ambition, as Madison put it). That assumption, however, was grounded in a political context in which political parties did not exist. The rapid development of such parties in the 1790s ensured that the system would not operate precisely as the Founders had anticipated. Specifically, when the president and the majority of the House and Senate come from the same political party, those branches of the national government are more likely to act in tandem than in opposition to one another.
That said, throughout American history, members of Congress hailing from the same party as the president have proved at least occasionally willing to check executive authority. Perhaps most famously, many Republicans (though not a majority on the House Judiciary Committee) supported the impeachment of Republican President Richard Nixon during the Watergate scandal. Today, by contrast, Republican congressional representatives and senators have been “utterly supine” (to quote retiring Arizona Sen. Jeff Flake) in their stance toward President Trump’s transgressions of constitutional rules and norms.
Three factors explain why President Nixon could have been impeached in 1974, while President Trump probably cannot be today. First, Democrats dominated both houses of Congress then, while Republicans control both houses today. Second, in the 1970s the two major political parties were ideologically diverse. Conservative Democrats and liberal Republicans, plentiful in the early 1970s, barely exist in Congress today. The most conservative congressional Democrat in 2018 is more liberal than the most liberal Republican. Third, there was no analogue in 1974 to today’s Fox News, which has become essentially a propaganda arm of the Trump administration, performing a function similar to that of government-controlled media in increasingly authoritarian Poland and Hungary — stating untruths, spinning conspiracy theories, and diverting attention from the administration’s malfeasances.
In 1974, most Americans got their facts — and they were facts — from Walter Cronkite, Huntley and Brinkley, or Howard K. Smith. But facts are increasingly out of fashion today. According to opinion polls, a majority of Republicans believe (still) that President Obama was not born in the U.S., that human-caused global climate change is not real, and that Trump would have won the popular vote in the 2016 presidential election had it not been for the illegal ballots cast by 3 to 5 million undocumented immigrants. In the absence of consensus about basic facts, impeachment is not a realistic possibility because not enough Republicans will believe any facts uncovered by Special Counsel Robert Mueller with regard to the Trump campaign’s collusion with Russia or the president’s possible obstruction of that investigation.
Essentially unchecked by a Republican-controlled Congress, Trump has proved willing to push the limits of both constitutional rules and historically grounded norms of the presidency. The president’s continued ownership of the Trump Organization amounts to an almost daily violation of the Constitution’s Foreign Emoluments Clause. Trump’s successful intimidation of National Football League team owners to suppress their players’ protests against racial injustice by kneeling during the playing of the national anthem quite possibly violates the First Amendment’s protection of freedom of speech. So does Trump’s repeated efforts to bully the postmaster general into raising package-delivery rates for Amazon, which is a brazen attempt to retaliate against its CEO, Jeff Bezos, for negative coverage of the administration by The Washington Post, which Bezos independently owns.
A Congress controlled by Republican majorities has done almost nothing to check the president’s transgressive behavior. Instead of defending the special counsel’s investigation, Senate Majority Leader Mitch McConnell has blocked a proposed bill to protect Mueller’s independence in the face of Trump’s repeated threats to fire him. (McConnell’s peculiar logic is that Mueller doesn’t require protection because the president hasn’t tried to fire him yet, though we now know that Trump twice sought to do precisely that.)
House Republicans have been even more complicit with the Trump administration. With the active connivance of Speaker Paul Ryan, the chair of the House Intelligence Committee, Devin Nunes, has repeatedly endeavored to delegitimize the special counsel’s investigation, even to the point of dangerously undermining public confidence in the FBI and the Justice Department. Nunes has fabricated stories about the unauthorized “unmasking” by the Obama Justice Department of American citizens whose words were inadvertently captured on lawful wiretaps, improper national security surveillance of Trump campaign aide Carter Page … and the FBI’s planting of “spies” within the Trump campaign. House Freedom Caucus leaders Mark Meadows and Jim Jordan have threatened to launch impeachment proceedings against Deputy Attorney General Rod Rosenstein for refusing to turn over to Congress Justice Department materials, when doing so may jeopardize the Mueller investigation. One could imagine congressional Republicans’ resuming traditional oversight functions were Trump’s approval ratings within the party to decline from their near-record levels of 85 to 90 percent. Yet it is not clear what additional transgressions by Trump would be necessary to produce that effect.
Federal courts have done a better job than Congress thus far of curbing the administration’s unconstitutional actions. Numerous lower courts have struck down the thinly veiled Muslim travel ban, the executive order banning openly transgender individuals from military service, and the executive order threatening “sanctuary cities” with a loss of federal law-enforcement funding.
For three reasons, however, judicial checks on this president are unlikely to prove very significant in the long term. First, the Supreme Court, which has a 5‒4 conservative majority, is unlikely to prove a robust check on a Republican president. Republican justices have already demonstrated in recent years that they think roughly the same way as Republican politicians about voter I.D. laws, state voter purges, the importance of a key provision of the 1965 Voting Rights Act, and the termination of manual vote recounts in presidential elections that potentially threaten the ascension of a Republican candidate to the presidency. They may well feel the same way as Republican politicians about Trump’s assault upon the norms and constitutional rules of democracy.
Second, the lower federal courts currently lean strongly Democratic (because, prior to 2016, Democratic presidents were responsible for nominating federal judges for 16 of the previous 24 years), but that will not be the case much longer. Trump has already appointed more than 10 percent of the federal appeals court judges in the nation, as Senate Republicans have confirmed Trump’s judicial nominations at a record pace. Third and finally, the Supreme Court throughout American history has rarely proved a strong check on executive malfeasance during time of war or terror. The court’s acquiescence in Japanese-American internment during World War II is only one of many illustrations of this point.
GAZETTE: Given that impeachment is a political remedy and not a legal one, does that allow for the possibility that a president who commits a crime, even one against the U.S., could be immune from prosecution while in office unless Congress acted?
TUSHNET: This is a very controversial question, and the best answer really is that no one can offer a completely slam-dunk argument either for or against the proposition that the president cannot be criminally prosecuted while in office. My own view, for what it’s worth (not much), is that the balance of the arguments tilts slightly against that proposition.
KLARMAN: Scholars disagree about whether the Constitution permits criminal prosecution of a sitting president. The document explicitly contemplates removal of the president through an impeachment by the House of Representatives, followed by a judgment of conviction from the Senate (with a two-thirds majority of the senators present during the trial being required for removal). The Constitution further provides that “the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The qualifying clause in this provision is susceptible to two interpretations. Those who reject criminal prosecution of a sitting president argue that the negative inference of expressly authorizing criminal prosecution of a president once removed from office through conviction on an impeachment is that the president may not be criminally prosecuted before being removed from office. An alternative reading is that the qualifying clause simply forecloses any possible “double jeopardy” objection to criminally prosecuting a president who has already been tried and convicted on an impeachment. On this view, the clause says nothing about whether a sitting president can be criminally prosecuted.
Neither side of this debate limits itself to arguments based on the constitutional text. Those who reject criminal prosecution of a sitting president rely equally on the policy argument that because the executive power of the U.S. is vested in a single individual (the president), governance of the nation would be effectively crippled were he to be jailed during his tenure in office. Those on the other side of the debate argue that the vice president could easily assume the duties of the president while incarcerated. They also argue that the Constitution’s impeachment clauses do not distinguish among various civil officers of the U.S., and historical precedent plainly permits criminal prosecution of other sitting civil officers, including the vice president (as evidenced by the indictment of Vice President Spiro Agnew for tax evasion in 1973).
On two occasions (in 1973 and 2000), the Office of Legal Counsel, which provides legal guidance to the executive branch of the federal government, has opined that a sitting president cannot be criminally prosecuted. However, also on two occasions, the legal staff of independent counsels (Leon Jaworski in 1974 and Ken Starr in 1998) concluded the opposite. Most legal scholars would probably be surprised if Robert Mueller were to pursue an indictment against President Trump.
GAZETTE: How would a court, even the Supreme Court, enforce an order over a president if he or she were to simply ignore it? If the court could not enforce an order, then what?
TUSHNET: One can come up with scenarios in which the court’s orders might be coercively enforced (U.S. marshals might take their orders from the court rather than president, for example, and — in the ultimate stage — U.S. military troops might refuse to comply with a presidential order). But if things get to that point, the political atmosphere will have become so heated that, really, no one can say how things would turn out.
KLARMAN: Court rulings make little practical difference unless they are enforced. President Dwight D. Eisenhower’s initial unwillingness to enforce Brown v. Board of Education in the face of Southern white resistance — and his subsequent reluctance to go beyond a lukewarm endorsement of the ruling as the law of the land — was one of the principal reasons that so little school desegregation took place in the South in the decade after 1954. The president has the military at his disposal. The Supreme Court does not.
For that same reason, the president is likely to win most confrontations with the federal courts. President Abraham Lincoln successfully defied Chief Justice Roger Taney’s order invalidating the president’s suspension of the writ of habeas corpus during the Civil War. While President Andrew Jackson probably never uttered the infamous words, “[Chief Justice] John Marshall has made his decision; now let him enforce it,” the sentiment expressed in those words is accurate. The court’s decision in 1832 invalidating the state of Georgia’s assertion of sovereignty over the Cherokee Nation could not have been effective without the president’s backing. When the Supreme Court invalidated several New Deal measures in 1935‒36, President Franklin D. Roosevelt threatened to [expand and] pack the court, and the justices quickly backed down from the confrontation.
Trump might well choose to disregard an inconvenient judicial ruling were he to calculate that he could get away with doing so. During his business career, Trump frequently breached legal obligations — such as paying subcontractors or creditors what they were due — until compelled by a court to comply with them. Yet courts have no mechanism for coercing a recalcitrant president.
So why did President Nixon ultimately turn over the Watergate tapes, rather than defying the Supreme Court’s order that he do so? Nixon had record-low approval ratings in August of 1974, and the House Judiciary Committee was on the verge of returning articles of impeachment against him. As already noted in response to question 1, three important differences between then and now bear on Trump’s ability to get away with violating a hypothetical court order: Republicans currently control Congress; polarization among the political parties is greater than at any time since the Civil War; and the proliferation over the last 30 years of right-wing media outlets has deprived political adversaries of a common set of facts.
Trump has already denounced as a “so-called judge” the first federal jurist who invalidated his Muslim travel ban, as well as labeling “a disgrace” the panel of appellate judges who were about to affirm that ruling. It is not clear that Republican office holders, who have barely protested the president’s fact-free denunciations of the F.B.I. and his own Justice Department, would challenge his defiance of an inconvenient judicial order.
GAZETTE: The executive branch enjoys wide latitude in a number of critical areas in which the only restraint from overreach or an abuse of power is a president’s willingness to abide by accepted norms. Trump’s presidency has highlighted that the Constitution does not address or provide a structural check or limit a president in key realms. (The accompanying chart provides examples.)