Why Mueller Can’t Subpoena Trump

There are significant factual disputes about these episodes, but all involve the president’s exercise of his core constitutional powers as chief executive, including the power to appoint and remove high-level executive-branch officials, to supervise the performance of their duties (as in the Espy case), and to determine law-enforcement priorities. We have argued in these pages that the president cannot obstruct justice by exercising the discretionary powers of his office, especially in determining whether and why to fire high-level presidential appointees like Mr. Comey. According to the two leaked letters from Mr. Trump’s lawyers to Mr. Mueller, they take essentially the same view.

Any prosecution based on Mr. Trump’s exercise of his core constitutional authority would dramatically impair the executive’s status as a coequal branch of government, considering that Congress enjoys immunity under the Speech and Debate Clause while exercising its legislative powers. It would also inject the judiciary into the president’s decision-making process, requiring judges to delve into matters that are inherently political.

Developments over the past year reinforce our view that it would unconstitutionally debilitate the presidency to base an obstruction charge on gainsaying the president’s motives in exercising his core responsibilities. Mr. Trump’s critics have also accused him of obstructing justice by using his pardon power. They claim his pardons of Joe Arpaio, Scooter Libby and Dinesh D’Souza —whom he considers victims of previous political prosecutions—were meant to reassure targets of Mr. Mueller’s probe that they too might be pardoned. Under such logic, a president under investigation could not discharge his constitutional duties at all, including the use of military force overseas—which can always be cast as a “wag the dog” strategy.

..  That independent-counsel investigation did not concern the exercise of presidential authority. They concerned allegations of perjury and obstruction from Mr. Clinton’s personal relationship with a White House intern.

.. Because constitutional considerations were not in play

.. Mr. McGahn spent nearly 30 hours describing the substance of his conversations with Mr. Trump and offering his assessment that the president’s actions were lawful.

With access to the relevant documents and everyone around the president, the special counsel has no material facts left to find.

.. Interviewing or interrogating the president could shed additional light only on his own thoughts and motives—exactly what executive privilege is designed to protect.

.. Mueller knows that losing a subpoena court fight would prolong and delegitimize his investigation. He is unlikely to press the point.

 

Trump and the Return of Divine Right

In deploying his pardon power freely and using the Bible to justify family separation, the president is exactly the sort of ruler that Enlightenment thinkers feared.

The heartbreaking scenes on the southern border seem a world away from recent presidential pardons. Sobbing children and bereft parents have nothing in common with Joe Arpaio, Dinesh D’Souza and, most recently, the Oregon ranchers Dwight Hammond and his son, Steven, who had been convicted of arson in 2016 and whom President Trump pardoned on Tuesday. Yet both come down to a relationship between justice and mercy that has a long history — and a cautionary moral for the president.

Family separation shows justice without mercy. The pardon power displays mercy in the name of justice. The administration cites the biblical injunction to obey the powers that be as one explanation for their zero-tolerance policy on immigration. With regard to immigration, it seems, there can be no discretion. By contrast, presidential pardons show how extensive discretion can be, because the Constitution gives the president “power to grant reprieves and pardons for offences against the United States, except in case of impeachment.”

.. Most Enlightenment thinkers were uneasy about the pardoning power. The two greatest oracles for the Constitution’s framers, the French philosopher Montesquieu and the English lawyer William Blackstone, both attacked it. “Clemency is the characteristic of monarchs,”

.. The framers argued that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel,” as Alexander Hamilton argued in Federalist No. 74. This was particularly true in “season of insurrection or rebellion,” Hamilton continued, “when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

.. With the ratification of the Constitution, George Washington received an array of powers many European monarchs might have envied. The president could veto legislation — something no British monarch had done since 1707

.. He has used the pardoning power as one of his few unfettered prerogatives, in just the undemocratic way Enlightenment thinkers feared. For them, authority flowed from the people, not from God; the pardon was a residue of divine right. When Attorney General Jeff Sessions cites Paul’s epistle to the Romans to justify family separation, he not only revives an argument used to defend absolutism and slavery but also implies there is still a power above the law defined by the Constitution.

.. The president can casually exercise his discretionary power to pardon Mr. Arpaio, who abused prisoners in his care, but then claims he is powerless to end a policy worthy of Sheriff Joe himself.

Obama was right: He came too early

Former Obama White House official Ben Rhodes, in his forthcoming memoir, tells of a moment of doubt the first African American president had after the election of Donald Trump on a campaign dominated by white grievance.

“Sometimes I wonder whether I was 10 or 20 years too early,” President Barack Obama said in the passage, first reported thisweek by Peter Baker in the New York Times.

I hate to say it, but I think the former president was correct.

Ten or 20 years from now, America will be much closer to the majority-minority nation it is forecast to become in 2045. A racist backlash to a black president wouldn’t matter as much.

But what was naively proclaimed in 2008 as post-racial America was instead kindling for white insecurity, and Trump cunningly exploited and stoked racial grievance with his subtle and overt nods to white nationalism. He is now leading the backlash to the Obama years and is seeking to extend white dominion as long as possible, with attempts to stem immigration, to suppress minority voting and to deter minority census participation.

.. These are the death throes of white hegemony. And they are ugly.This week alone:

.. ● Trump had no criticism for Roseanne Barr after her rebooted ABC show was canned because she called former Obama adviser Valerie Jarrett a cross between the Muslim Brotherhood and “Planet of the Apes.” Instead, Trump used the occasion to demand an apology of his own from ABC for unrelated slights.● Trump rallied supporters in Nashville with many of the race-based themes of his campaign, saying Mexico is “going to pay for the wall and they’re going to enjoy it.” He led the crowd in denouncing Latino “animals” who join the MS-13 gang, and repeated his message to black people: “What the hell do you have to lose?”

● Trump pardoned Dinesh D’Souza, the Indian American provocateur who had called Obama a “boy” from the “ghetto” and a “grown up Trayvon,” had dismissed Rosa Parks, and was prolific in his use of the n-word. This follows Trump’s previous pardon of anti-immigrant provocateur Joe Arpaio.

● Trump’s new secretary of state, Mike Pompeo, hosted the previously shunned Hungarian foreign minister, following his government’s reelection on a campaign of anti-Semitism and anti-Muslim demagoguery. The ruling party won by demonizing the Jewish Hungarian American George Soros, a Holocaust survivor.

.. And, finally, a new study by academic researchers in California found that opposition to welfare — another Trump fixation — has grown among white Americans. The researchers concluded that “whites’ perceptions that minorities’ standing is rising can produce periods of ‘welfare backlash’ ” — but only if they believe the programs primarily benefit minorities.

.. the main predictor of support for Trump is racial anxiety — far more than economic anxiety.
.. he tax cut, in the first quarter, contributed toan 8 percent increase in corporate earnings but only a 1 percent increase in consumer spending — the lowest increase in five years — and even though coal jobs are disappearing faster than before, wages remain stuck and the promised return of manufacturing hasn’t happened.

Donald Trump Presents: ‘Celebrity Impunity’

conservative author and activist Dinesh D’Souza wrote a book, “Obama’s America,” full of gross speculations about the sex life of the president’s mother, Stanley Ann Dunham, who was a pioneering anthropologist. “Ann’s sexual adventuring may seem a little surprising in view of the fact that she was a large woman who kept getting larger,” wrote D’Souza. He described her as a “playgirl” who used “her American background and economic and social power to purchase the romantic attention of third-world men.”

D’Souza’s insinuations had little to do with his ostensible thesis, which was that Obama sought to undermine America. It was simply a timeworn insult — calling someone’s mom fat and promiscuous — that tells us nothing about Obama’s family, but a lot about D’Souza’s character.

.. D’Souza is a felon who, in 2014, pleaded guilty to routing illegal campaign donations through a woman he was having an affair with, and the woman’s husband.

.. At the time, D’Souza was married and serving as president of the evangelical King’s College. His ex-wife would later accuse him of physical abuse.

.. D’Souza pardon, like those of the former Arizona sheriff Joe Arpaio and the former Dick Cheney aide Scooter Libby, is a message to Trump confederates facing legal trouble.

.. D’Souza was convicted of one of the same crimes, a campaign finance violation, that Trump’s lawyer Michael Cohen is now being investigated for.

  • .. the study estimating that around 4,600 people died in Puerto Rico as a result of Hurricane Maria
  • outrage over migrant children ripped from their parents’ arms at the border;
  • and an incipient trade war with our allies.

.. D’Souza, who made his name in the 1990s fighting campus political correctness, once had a reputation as a middlebrow conservative provocateur, but he’s really more gutter-dwelling troll.

.. In the Trump era, he’s become even worse. He mocked survivors of the Parkland, Fla., high school shooting who cried after the Florida Legislature voted down an assault weapons ban, tweeting, “Worst news since their parents told them to get summer jobs.”

.. even if Trump was acting out of instinct rather than calculation, he has an intuitive ability to speak to his supporters’ dark impulses,

and an insatiable need to smash boundaries that constrained his predecessors.

.. Fascism, Ilyin wrote approvingly, is “a redemptive excess of patriotic arbitrariness.” Trump has almost certainly never read this line, but he understands it.