By David B. Rivkin Jr. and Elizabeth Price Foley
31 May 2019 in the Wall Street Journal
It’s as if nothing happened. Special counsel Robert Mueller and the Justice Department found no wrongdoing by President Trump, so House Democrats stepped up their calls for impeachment. Judiciary Committee Chairman Jerry Nadler issued a subpoena for millions of pages of evidence gathered by Mr. Mueller, including grand-jury material, which is secret under the law. When the department didn’t comply, Democrats said there was a “constitutional crisis,” and the committee voted to hold Attorney General William Barr in contempt.
Yet if there is a constitutional crisis, its source is the Democrats. They are abusing the powers of investigation and impeachment in an illegitimate effort to unseat a president they despise.
Congressional Democrats claim they have the power to investigate the president to conduct “oversight” and hold him “accountable.” That elides an important constitutional distinction. As the Supreme Court said in Watkins v. U.S. (1957), Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Executive departments and agencies are created by Congress and therefore accountable to it. The president, by contrast, is not a creature of lawmakers. He is Congress’s coequal, accountable to Congress only via impeachment.
To commence impeachment, the House has a constitutional obligation to articulate clear evidence of “high crimes and misdemeanors.” A two-year Justice Department investigation did not find that Mr. Trump had committed crimes. On the Russian collusion issue, Mr. Mueller reported that his investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
Regarding obstruction of justice, Mr. Mueller “did not draw ultimate conclusions about the President’s conduct,” so the duty to do so fell on his boss, Mr. Barr—who, with senior Justice Department officials, concluded that the evidence was “not sufficient to establish that the President committed an obstruction-of-justice offense.”
House Democrats claim they’re entitled to see Mr. Mueller’s underlying materials. But Congress may not use its subpoena power for a prosecutorial do-over. The Constitution gives law-enforcement authority to the executive, not the legislative, branch. In Quinn v. U.S. (1955), the Supreme Court said that Congress’s “power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.”
Impeachment isn’t a law-enforcement function, but demanding Mr. Mueller’s documents to search for impeachable offenses is still unconstitutional. The Constitution gives the House the “sole power” of impeachment. Outsourcing aspects of the process to the other branches of government violates separation of powers.
Unfortunately, there is a precedent for such outsourcing, though it is one that ought to give Democrats pause: the impeachment of President Clinton. The offenses for which Mr. Clinton was impeached—perjury before a grand jury and obstruction of independent counsel Kenneth Starr’s investigation—were established by Mr. Starr, who informed Congress that “the evidence of wrongdoing is substantial and credible, and that the wrongdoing is of sufficient gravity that it warrants referral to Congress.” Mr. Starr issued a report and turned his materials over to the House because the now-defunct statute under which he operated required it. The Justice Department’s special-counsel regulations, which govern Mr. Mueller’s investigation, do not.
The Supreme Court upheld the constitutionality of the independent counsel in Morrison v. Olson (1988). It did not address the constitutionality of the requirement that independent counsels turn over evidence of impeachable offenses to the House. If it had, there would be deep concerns about separation of powers. In addition to the textual declaration that the House has the “sole power” of impeachment, the debate over impeachment at the Constitutional Convention supports an outsourcing prohibition.
Delegates were deeply divided on whether the president should be subject to impeachment at all—and if so, which institution should have this great power. They considered vesting the impeachment power in state legislatures but rejected the idea. The concern was that it would make the president too dependent on the states, endangering the vertical separation of powers. They also pondered entrusting impeachment authority to the judiciary—essentially, to the Supreme Court—but concluded that would give the judiciary too much power and enable it to impeach its own members.
Eventually and with misgivings, the Framers settled on vesting impeachment authority in the House, with trial by the Senate. Their greatest fear was that this arrangement would destroy separation of powers by rendering the president perpetually dependent on legislative approval. Charles Pinckney believed congressional impeachment power would chill the president’s exercise of his core constitutional powers (such as vetoing legislation) and encourage Congress to hold impeachment “as a rod over the Executive and by that means effectually destroy his independence.” Rufus King opined that “under no circumstances ought [the president] to be impeachable by the Legislature,” because such power would be “destructive of his independence.”
The Framers took pains to devise meaningful limits on the impeachment power. When George Mason proposed to add “maladministration” to treason and bribery as a basis for impeachment, James Madison demurred: “So vague a term will be equivalent to a tenure during the pleasure of the Senate.” In Federalist No. 65, Alexander Hamilton argued that “the greatest danger” of giving Congress the impeachment power is that its “decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.” To allay these concerns, the Framers limited impeachment to “high crimes and misdemeanors”—not mere political disagreements.
In addition, by resting the entire impeachment power in Congress, the Framers constrained it. Congress was to have limited investigatory power and to conduct its proceedings in a transparent, politically accountable manner. That effectively meant presidential misconduct would have to be open and notorious to be impeachable.
In that regard, at least, the 1868 impeachment of Andrew Johnson was exemplary. His firing of War Secretary Edwin Stanton was in open defiance of the Tenure in Office Act, although the Supreme Court eventually concluded the law itself was unconstitutional. Republicans who pushed Johnson’s impeachment were held politically accountable, with Democrats gaining 20 House seats out of 243 in the 1868 elections.
If the House can outsource impeachment, the deepest concerns of the Framers will become reality. Impeachment would have few limits and no political accountability. As a federal prosecutor, Mr. Mueller legitimately obtained information from a grand jury, wiretaps and other forms of surveillance unavailable to Congress. If Congress can secure these materials by simply commanding the executive branch to turn them over, it would tremendously augment its power.
Turnover of prosecutorial materials would allow Congress to hide behind the fact-finding and legal determinations of the other branches, thereby diminishing its own political accountability. Because the nation’s law-enforcement officials have concluded Mr. Trump has not committed any crimes, Democratic representatives cannot legitimately draft articles of impeachment accusing him of criminal conduct involving the same offenses of which he was cleared by the Mueller investigation. The House could impeach him for misconduct that doesn’t violate criminal statutes—say, abuse of power or inappropriate behavior. But lawmakers must be candid about what exactly the charge is.
Proceeding in such a fashion—not hiding behind criminal accusations that prosecutors have rejected—would require House Democrats to assume the full political risk for their impeachment efforts. Instead, they are pressing Mr. Mueller to testify, hoping he will say something beyond what is contained in his report, and to obtain his investigatory materials. By second-guessing the prosecutors and recasting Mr. Trump’s conduct as criminal-law violations, Democrats seek cover for their raw political push to unseat a president.
Outsourcing impeachment also fundamentally deforms the executive branch. In Federalist No. 51, Madison explained that each branch must possess “the necessary constitutional means and personal motives to resist encroachments of the others. . . . The interest of the man must be connected with the constitutional rights of the place.” When executive-branch officials see themselves as working for Congress, there is severe constitutional dislocation.
Mr. Mueller’s team, for example, embraced the proposition that a president can obstruct justice by exercising his constitutional powers, such as firing the director of the Federal Bureau of Investigation, if his decisions have a corrupt motive. That position runs roughshod over opinions of the Justice Department’s Office of Legal Counsel, which has consistently concluded that, to protect separation of powers, laws should not be construed to apply to the president’s performance of his official duties, absent a clear statement otherwise.
The obstruction statutes contain no such clear statement. And while Mr. Mueller refrained from ascribing corrupt motives to Mr. Trump, his legal view that the president can obstruct justice while discharging his constitutional powers is at odds with constitutional principles and would have never been adopted by the Justice Department in the normal course of business.
Allowing executive branch officials to investigate a sitting president all but invites a coup. Former Justice Department attorney Neal Katyal recently admitted that “the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress.” Mr. Mueller hinted at the same idea in a public statement Wednesday: “The Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing.”
To Mr. Katyal and others now proclaiming a “constitutional crisis,” the special counsel works for Congress, not the president. Similarly, House Democrats claim it was illegitimate for Mr. Barr and other senior Justice Department officials to reach a prosecutorial judgment on obstruction of justice. In their view, that determination should have been made by Congress—which has no power to make prosecutorial judgments.
These views reflect a deep constitutional rot. While executive-branch officials must abide by legitimate oversight requests from lawmakers, they work for the president, not for Congress. Investigations of a sitting president by the executive branch threaten the separation of powers by encouraging insubordination to the president. Executive officials may be willing to help grease the wheels of impeachment. That’s no way to run a government of separated powers.
America’s experience with special prosecutors, independent counsels and special counsels has left a trail of partisan-fueled destruction. These investigations are inherently harmful to national unity and a stain on the constitutional fabric. The only way to restore the separation of powers and prevent further damage is to ensure that Congress cannot outsource any aspect of its impeachment powers.
Existing opinions from the Office of Legal Counsel already hold that no sitting president should be indicted or criminally prosecuted, because such actions would debilitate the presidency. The same is true of criminal or counterintelligence investigations. Thus the OLC logic should extend those opinions and conclude formally that a sitting president cannot be investigated by the executive branch.
If the U.S. is led one day by a truly corrupt president, the proposed cure of executive-branch investigation to aid impeachment would still be far worse than the disease. A president who openly violates the law or otherwise betrays the public trust can be voted out of office or impeached by Congress—using, as the OLC has noted, “its own investigative powers” in an open, politically accountable way.
Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. She is a professor of constitutional law at Florida International University College of Law.