Kavanaugh is getting beaten up about Morrison v. Olsen and whether a president should have the power to fire a special prosecutor.
In my mind, the Constitution is clear:
That’s not the FBI, or the Attorney General, or a special prosecutor. What is the argument that there should be a member of the executive branch unanswerable (or unfireable) to the President?
I am not sure anyone (anyone in power) has said that the president is not legally capable of firing Mueller or anyone else in the executive branch.
I think the issue is the shit storm that would unfold if he tried.
See: Saturday Night Massacre when Nixon had special prosecutor Archibald Cox fired. No one said it was not possible for Nixon to fire Cox (although a court later said it was illegal but I am not sure those same reasons apply to Mueller). But what Nixon got was two resignations over refusals to do that and the final straw in dooming his presidency.
Another special prosecutor was appointed several days later so it didn’t help Nixon at all. Only hurt him.
Why is it that we keep hearing about the Unitary Executive Theory when there’s a Republican president, while Democratic presidents are always involved in all these unconstitutional “scandals”?
I am not a lawyer, but I would be shocked if Trump was unable to fire anyone in the executive branch. The issue seems to be: if he does, is it obstruction of justice? But take the firing of Comey. He was the head of the FBI with underlings. The new head of the FBI could be brought up to speed by those underlings in a single morning meeting, with time for a meet and greet perked up by some delicious bagels, coffee, etc. Now take Sessions. If Trump fired Sessions, it might even be seen as a “facilitation of justice” by those who think Sessions is unjustly refusing to go after crimes by “the deep state”. So yes, he has the authority to fire anyone in the executive branch. And no, it cannot obstruct justice.
Of course it can.
Assume Trump can fire anyone he wants with no repercussions.
So he fires Sessions and finds a new guy to fire Mueller. Trump then continuously fires anyone who attempts to continue the investigation into him till someone new to the job figures it is best to drop the matter entirely.
Look, all of these positions are filled by wealthy people with great job prospects. They won’t be afraid to go against Trump because if they get fired they won’t be able to pay their rent. And “continuous firing” would never happen, so it doesn’t matter the legal theory on that.
See the “Saturday Night Massacre” above.
Nixon kept firing people till he found one who would fire Cox for him. Turned out the third person (Bork) got the message and fired Cox but there is no reason to think Nixon would not have continued firing people till he found someone to do the deed.
If there were no repercussions Trump would undoubtedly do the same.
Well perusing wikipedia: Cox’s replacement, Leon Jaworski got going with no significant delay. Why call it a “massacre”? It seems like a comedy sketch about a silly beauracracy.
Yeah because there was a shit storm after Nixon fired Cox. He couldn’t try again. He was effectively done at that point.
Same would happen to Trump right now. He could fire Mueller but there would be a shit storm and it won’t help him. This is Trump. We know he is hyper-eager to fire Mueller but he still hasn’t and it is because those around him are telling him what the results would be and they are not pleasant. But given the chance to do so he’d be on it in a New York minute.
And I did not make up the name for the Saturday Night Massacre. Just what it is called.
Right. How can any president obstruct justice when it is his (or her) determination as to how justice is to be pursued?
Clinton got investigated by an independent prosecutor appointed under a law that has since been allowed to expire. That’s a way, even if not still in effect, where Congress constrained the power of the executive to fire. Congress has also legislated limitations on the power of the President to fire a large group executive branch employees. They would be the federal civil servants. Those laws have not been overturned as unconstitutional although there’s been court challenges and legal debate. Executive authority to fire, even within the executive branch, is not absolute in precedent.
Mueller, however, got appointed by the DOJ under DOJ internal regulations. He’s hanging out there without clear legislative branch protection from being fired.
You should have written “constitutional argument” rather than “argument” if that was what you meant. Clarity is good.
The logical case (independent of any constitution) for having a way to prosecute a criminal President argues itself. Google “Quis custodiet ipsos custodes?”
What if the guy were literally shooting people on Pennsylvania Avenue? Would that be OK too?
Yes, Elizabeth Dei Gratia is exempt from prosecution, and so is the Pope, I guess. But IIRC the U.S.A. was founded in part because we didn’t want a King.
Maybe, maybe not. It’s astonishing that some people still regard this Presidency as bound by norms.
There seem to be a few people here insisting that POTUS Trump has constitutional immunity. I’ll bet a half gallon of Johnnie Walker Blue that these are the very people who would have called for a Special Prosecutor had Hillary won the election.
Seriously? He can obstruct justice by making determinations calculated to impede or undermine the effective pursuit of justice. This isn’t hard to grasp.
You only have a problem here if you define justice as “whatever outcome Trump wants”. Trump obviously does understand justice in those terms. But it would be utterly bizarre if anyone else did.
I’m not sure you are correct there. Yes, she cannot be prosecuted in the courts, but the precedent was set 350-odd years ago when Charles was prosecuted by Parliament.
I believe that argument is “no man is above the law”. A pretty basic one. And if the constitution is incapable of ensuring that, there’s a serious, deadly flaw in the constitution. If the president can fire anyone who would investigate his crimes, it means he can basically do whatever the fuck he wants, laws be damned.
The executive branch is so-named because its purpose is to execute the law. The President has sworn an oath to do so, and to uphold the ideals of the Constitution, as the chief of the executive branch.
A President who fulfills his oath has no need to fire a person hired to investigate his own conduct and so will not. The question is moot. A President who does not fulfill his oath is just some dude, not the President, because he has chosen to abdicate his powers by failing to perform as he had sworn. He’s not the President and so, again, the question is moot.
The President can fire anyone in the executive branch. But he can fire no one, whether it’s the special counsel or the janitor, for corrupt purposes.
Obviously, the reality may play out differently than that, but that is the theory.
The constitution provides a way for the president to be held accountable. The congress can impeach him for whatever they want, whenever they want. As soon as he is impeached and convicted he is no longer the executive and so the executive can investigate him without any interference.
But he obviously can’t be impeached on crimes that haven’t been investigated so we are back at square one with a minor caveat. The president can do anything he wants “laws be damned” so long as he isn’t so blatant as to be caught with a smoking gun in his hand. (or has at least 34 senators who are loyal enough to him that they will ignore the smoking gun.)
Which scandals are those?