When Does the President Commit Obstruction of Justice?, III

(Written with Daniel Hemel.)

We argued in a prior post that a President who fires the FBI Director in order to halt the investigation of the President’s former aide can—under certain circumstances—be guilty of obstruction of justice. Motive matters. If the President wants to halt the investigation because the former aide has offered him a bribe, the President would be acting “corruptly”—and thus criminally. But we can also imagine circumstances in which the President’s intervention in an investigation would be a legitimate exercise of executive power. Drawing the line between criminal obstruction and prosecutorial discretion is not an easy task. But it is also clear that criminal obstruction statutes can apply to executive branch officials who wield prosecutorial power—as illustrated by the indictment and conviction of Nixon Attorney General John Mitchell on obstruction charges.

Imagine that the President wants to halt the investigation because he knows that the former aide, while working on behalf of the President’s campaign, helped a hostile power influence the outcome of the U.S. general election. The President seeks to stop the FBI’s probe in order to prevent this information from coming to light. If the information does come to light, the aide and possibly the President himself could be found guilty of a serious crime. This seems like textbook obstruction of justice: intervening in an investigation—and thereby impeding the “due and proper administration of the law”—based on a motive that is fundamentally corrupt.

Now imagine instead that the President wants to halt the investigation because he knows that during the interregnum between the general election and the President’s inauguration, the former aide—acting on the President-elect’s behalf—sought to open a secret backchannel with a historical adversary. The negotiations were aimed at achieving a comprehensive Middle Eastern peace accord, or a new nuclear nonproliferation pact, or the release of U.S. hostages. Moreover, the President believes that it would diminish the prospects for diplomatic success if the existence of these talks came to light prematurely. Here, we think it’s clear that the President’s intervention does not constitute obstruction: the President should have the power to suspend an investigation when he believes the national interest demands it.

A natural test for obstruction might thus be a case in which the President seeks to immunize himself from conviction of some (underlying) crime. But this seems too narrow. Consider some intermediate cases, where the president halts an investigation into possible collusion between his former aide and a foreign power because:

— (1) The investigation might reveal unflattering facts about the President, top aides, or his family;

— (2) The investigation might distract attention from the President’s domestic policy agenda; and/or

— (3) The investigation might impose financial, professional, and emotional costs on the former aide, a man whom the President regards highly.

These are all harder cases. We think a reasonable approach would be to say that a President commits obstruction of justice when he seeks to stop an investigation that he believes may bring to light evidence of criminal activity by himself, his family members, or his top aides, and possibly merely embarrassing information as well (scenario 1, and, we think, scenario 3). But it should be a defense if the President can show that he acted consistently with his constitutional role as the faithful executor of federal laws and as commander in chief. A President who stops an investigation because of urgent national security priorities would not be criminally liable.

Consider now scenario (2): the President stops the investigation because it might prove to be a distraction that prevents him from passing health care legislation or comprehensive tax reform. We think this would indeed amount to obstruction. The President’s constitutional role is to “take Care that the Laws be faithfully executed,” not to enforce the laws selectively so as to maximize his probability of political victory.

This analysis assumes that the President acts on a single motive for intervening in an investigation. But what if the President acts for multiple reasons—one that would constitute obstruction and one that would not? Imagine, for example, that the President fires the FBI Director because (1) he wants to cover up evidence of wrongdoing by his own campaign, but also (2) thinks that the FBI Director mishandled a high-profile probe of the President’s election opponent and sullied the bureau’s reputation along the way. Does the fact that the President had at least one “good” motive inoculate him from criminal liability?

The problem of mixed motives in obstruction-of-justice cases is not unique to the presidential context. Courts have long wrestled with the same question as applied to non-presidential defendants. We know of no case holding that any ounce of proper purpose requires acquittal (though the Trump administration takes the analogous position that the existence of any legitimate reason for the President’s travel ban excuses concurrent discriminatory motives for the policy). A “primary purpose” test, which can be found in other areas of the criminal law, might serve here.

Can the president commit the crime of obstruction?, II

(Written with Daniel Hemel.)

The President orders the FBI Director to halt an investigation of the President’s former aide. The Director refuses. The President responds by:

A1. Firing the Director.

A2. Taking a fifty out of his billfold and offering it to the Director as a bribe.

A3. Pulling out a pearl-handled Smith & Wesson and shooting the Director in the forehead.

Put aside the question of whether the President can be indicted while in office. To fix intuitions, imagine that the actions come to light the day after he leaves the White House: the question is whether to charge him with a crime now that he is a private citizen.

We think almost everyone will agree that A2 and A3 are crimes. Alan Dershowitz argues that the President has the constitutional authority to order the FBI Director to end an investigation, but we are nearly certain that even Dershowitz would agree that the President must not violate the statutory prohibitions against bribery and murder along the way. It is worth noting, however, that these statutes constrain the president’s enforcement discretion—a fact that does not render them invalid.

Now consider a second scenario. The President’s former aide, who is under FBI investigation, offers the President $100 if the President stops the probe. The President then orders the FBI Director to halt the investigation. The Director refuses. The President responds by:

B1. Firing the Director.

B2. Taking a fifty out of his billfold and offering it to the Director as a bribe.

B3. Pulling out a pearl-handled Smith & Wesson and shooting the Director in the forehead.

We think almost everyone will agree that B1, B2, and B3 are all crimes. Again, the President has the constitutional authority to order the FBI Director to end an investigation, but he commits a felony if he exercises that authority in order to procure a payment for himself.

Now consider a third scenario. The President orders the Attorney General to stop prosecuting nonviolent drug offenses. The AG refuses. Again, the President responds by:

C1. Firing the AG.

C2. Taking a fifty out of his billfold and offering it to the AG as a bribe.

C3. Pulling out a pearl-handled Smith & Wesson and shooting the AG in the forehead.

C2 and C3 are again clearly crimes. But we think that now, almost everyone would agree that C1 is not.

What makes B1 and C1 different?

The distinction lies in the motive. Congress has enacted several obstruction of justice statutes that make it a crime to “corruptly” influence, obstruct, or impede a proceeding, or to attempt to do so. In B1, the President acts corruptly out of a desire to procure a bribe. In C1, the President presumably acts because he thinks that the prosecution of nonviolent drug offenders is a misallocation of law enforcement resources. Whether one agrees or disagrees with that view, it is difficult to argue that the President in C1 is corrupt.

A1 is the harder case—indeed, the only one of these scenarios that strikes us as difficult. It is also the case closest to the one at hand. Is it more analogous to B1 (clearly a crime) or to C1 (clearly not)? Again, the fact that the President has the constitutional authority to order the FBI Director to end an investigation does not help us answer the question, because firing the FBI Director in order to end an investigation can be a crime nonetheless (B1).

Much depends on why the President wants to end the investigation of his former aide. If he thinks that the investigation is a gross misallocation of FBI resources that threatens to divert the bureau from its crime-fighting and counterterrorism responsibilities, then A1 begins to look like C1 (not a crime). But what if he wants to end the investigation because he is worried it might bring to light embarrassing information about himself, his family members, or his political associates? Then, A1 begins to look more like B1 (criminal indeed).

The apparent fact that President Trump fired the FBI Director in order to halt an investigation of the President’s former aide does not tell us whether the President has committed a crime. Clearly, some actions that the President might take in order to halt an FBI investigation would indeed be criminal (bribery, murder). And almost as clearly, there are some circumstances in which a President who fires the FBI Director in order to halt an investigation would be guilty of a crime (B1). But there are also circumstances in which a President who fires a law enforcement official in order to stop an investigation or a prosecution (or thousands of the same) would not be a criminal. Senator Howard Baker’s famous question during the Watergate hearings—“What did the President know and when did he know it”?—might be repurposed as: “What did the President do and why did he do it.” At this point, the “why” matters just as much as the “what.”

Can the president commit the crime of obstruction of justice?

Alan Dershowitz says no:

The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

His argument is that the obstruction of justice statutes can’t apply to the president because the president possesses the constitutional authority to stop an investigation—by issuing an order to the attorney general or FBI director, by firing them if they do not obey the order, or by pardoning the person under investigation. Any interpretation of the obstruction of justice statute that blocked this authority would violate the Constitution. (Dershowitz agrees that Congress can impeach the president for obstruction of justice but only because impeachment is a political process; on this, see below.)

This argument is superficially appealing but I don’t think it’s right. To see why, imagine that Congress passes a statute that says (for example): “the president may not order the FBI director to stop an investigation of the president or any other executive branch official.” If Dershowitz is right, this statute would violate the Constitution and be struck down by a court.

Would it? The Supreme Court hasn’t told us, but it rejected the broad description of presidential authority that Dershowitz relies on. In Morrison v. Olson, it upheld the (now defunct) independent counsel statute even though the law created a roving prosecutor, gave him the power to bring charges against executive branch officials including the president, and prohibited the president from removing him. (The Attorney General retained the power to remove the independent counsel for “good cause.”)

In the Starr report, independent counsel Kenneth Starr had no trouble accusing Bill Clinton of committing the crime of obstruction of justice:

An effort to obstruct justice by withholding the truth from the legal process — whether by lying under oath, concealing documents, or improperly influencing a witness’s testimony — is a federal crime. There is substantial and credible information that President Clinton engaged in such efforts to prevent the truth of his relationship with Monica Lewinsky from being revealed in the Jones case.

Dershowitz would no doubt argue that Starr was mistaken, and that if Clinton had been prosecuted rather than impeached, a court would have thrown out this charge. I think it more likely that a court would seize on the “corrupt” intent language in the statutes, and hold that the president can do what he wants as long as he does not act “corruptly.” He can fire the FBI director for mismanaging the institution, or failing to comply with the president’s priorities, or even for being disagreeable or untrustworthy, or for standing in the way of another appointment, but not for investigating the president or his top aides. Trump could have lawfully fired Comey for mishandling the (Hillary) Clinton investigation or simply for failing to inspire confidence but not for investigating Trump’s pal Flynn.

Why does this matter? No prosecutor will bring charges against Trump. But if an impeachment occurs, then the allegation that the president has committed a crime lends gravity to the proceedings, and fulfills the constitutional command that the impeachment be based on “high crimes or misdemeanors.” That’s why it matters whether Trump committed a crime or not, as Dershowitz clearly understands.

Dershowitz says that Trump could have pardoned Flynn, and that is surely right. I’m not sure, however, that Dershowitz is right that misuse of the pardon power—for example, to thwart an investigation of the president himself by depriving investigators of bargaining power over an aide—cannot be an obstruction of justice. Suppose that the president pardoned someone in return for a bribe. The pardon may be valid, but the president committed a crime. A similar argument could be made if the president pardoned someone in order to obstruct justice. In any event, unless Trump pardons Flynn, the argument is of no importance.

Response to Matt Klein’s post on Alphaville on Harberger taxation

(Written with Glen Weyl.)

Matt Klein’s post on Alphaville about a recent paper of ours made a number of errors. In that paper, we propose a “Harberger tax” on wealth: people would be required to declare their self-assessed value of their property and pay a tax on that valuation; anyone else could force a sale of the property at the declared valuation. Individuals could deduct the value of any liabilities (like debt).

Klein’s central claim is that our proposal would benefit the rich at the expense of ordinary Americans. “A purer variant of plutocracy is hard to imagine.” However, a wealth tax would fall more heavily on rich people than on middle-class or poor people. The reason is simple: rich people by definition own more property than the rest of us do. Because the distribution of wealth is highly skewed in the United States, the tax would fall far more heavily on the rich than on the poor.

Klein’s claim seems to be based on two misunderstandings of our paper. First, he appears to think that the Harberger tax is based on the nominal value of assets rather than on net worth (equity) (see section 2.7). The homes of middle class people are typically encumbered with mortgages, leaving relatively little equity to be subject to the tax. Second, Klein neglects a classic result in the theory of property taxes: imposing a tax lowers asset values. A tax of, say, 2.5% expropriates 1/3 of capital rents (if the interest rate is 5%), which would reduce the value of assets by a third.

Keeping these facts in mind, let’s consider an example. A typical American family has about $50k of income and about $80k of net worth, encompassing about $50k of home equity and $30k of other assets. A Harberger tax of 2.5% would cause this net worth to fall by about 1/3 to roughly $55k, while the annual tax payment would be roughly $1400. The tax would also generate revenue, which, according to our calculations, would generate about $14,000 per family as a social dividend. The typical family would gain on net more than $12,000 annually.

Klein also claims that wealthy people would predatorily take assets from poor people they want to harm. This is silly, as it assumes that individuals would price their assets below what they would be willing to accept for those assets, which is never true at the optimal tax rate under our system. Rich people can, at present, “predatorily” buy up assets by offering lots of money to make poor people rich. Most people don’t view this as a major threat to the well-being of the poor.

Elsewhere, Matt Levine offers some helpful criticisms about the administrative workings of our system, which we will address in due course.

The (really very) odd Kabuki of the climate pact withdrawal, part 2

I’m told by someone who knows about these things that the Obama-era climate actions, combined with ongoing shifts in the U.S. energy sector, will ensure that the U.S. will reach its announced (voluntary) target under the Paris agreement, or nearly so, whatever Trump decides to do. Rex Tillerson has also chimed in:

I don’t think we’re going to change our ongoing efforts to reduce those emissions in the future either, so hopefully, people can keep it [the Paris withdrawal] in perspective.

If all this true, then U.S. policy is to effectively comply with an agreement that the U.S. formally repudiates.

A bizarre form of negative hypocrisy (“hypercrisy”?)! Rather than (as usual) declare ourselves virtuous to the world by signing idealistic agreements that we expect to violate, we declare ourselves amoral by announcing that we will violate agreements we plan to comply with? The tribute that virtue pays to vice? What gives?

The obvious answer is that Trump is merely playing to his base; the withdrawal is symbolic, while the political and economic tectonic forces do their thing. Still, it is worth keeping in mind some precedents:

1. The U.S. negotiated the League of Nations treaty, then refused to join that body, then sent “observers” who allowed the U.S. to play a role in that organization.

2. The U.S. led the way in the negotiations of the International Trade Organization, but then refused to join it, and yet managed to replace it with the quasi-legal GATT.

3. The U.S. helped negotiate the UN Convention on the Law of the Sea, then refused to join it, even after it was renegotiated to further advance U.S. interests, but has more or less accepted it as customary international law.

4. The U.S. helped negotiate the Rome Treaty creating the International Criminal Court, then “unsigned” the treaty, then still later supported the ICC in various ways.

The common element is that the treaties were elite projects (led by the president) that never achieved the support of the general public, or significant elements of it (who spoke through the Senate or Congress). The government pursued them anyway, outside formal international legal frameworks. Trump may be different, but it seems more likely that sooner or later the pattern established in the examples above will play out in the arena of international climate policy as well.

The Odd Kabuki of the Climate Pact Withdrawal

Some critics say that because the pact does not require the U.S. to do anything, the withdrawal is “gratuitous,” an insult to the world. But if the pact does not require the U.S. to do anything, why would withdrawal make any difference to the climate? Why is everyone so upset? On the other hand, if the pact does not require the U.S. to do anything, why bother to withdraw? Why not remain in the pact, and—as the critics seem to suggest—simply decline to agree to any U.S. greenhouse gas reductions? Trump, on this view, could avoid the obloquy of the world for withdrawing from the agreement even while eliminating the Obama-era climate regulations and pumping the atmosphere full of U.S. carbon gas.

Meanwhile, other critics argue that the U.S. can’t actually withdraw because the agreement will remain in effect, at least for several years, perhaps indefinitely. We’re not withdrawing from it but violating it (but how…?), and a future president can bring us back into compliance (by, presumably, saying we’re back in even if that future president announces that we will not actually reduce greenhouse-gas emissions).

Here is another odd thing. Like virtually any other collective venture, the global project of reducing greenhouse-gas emissions involves short-term costs and long-term benefits. Consider, for example, a treaty to protect a fishery. If the U.S., EU, and Canada negotiate a treaty to protect a fishery in the Atlantic Ocean, they all incur short-term costs (catching fewer fish in early years) in order to generate long-term benefits (catching more fish in later years). Because of the public goods nature of the fishery, the deal can be sustained only if all three parties agree to it, and comply with it. If one withdraws, the other two will refuse to comply with it—because they would otherwise reward a free rider who incurs no short-term costs and reaps the benefits of the other parties’ costly restraint.

But that’s not what has happened with the Paris climate agreement. The other major parties have announced that they will comply (or “comply”). If we draw on the fishery analogy, then in a coup de main, Trump has spared the U.S. the short-term costs of greenhouse-gas reductions while allowing the U.S. to benefit from all the other countries’ costly efforts to reduce gas emissions. Shouldn’t we Americans be grateful? What could be more America-first?

It seems to me that there are two possible ways to think about this. First, the other countries have remained “in” the pact because they don’t actually expect the agreement to force them to do anything. Remember their “obligations” are voluntary. If that’s the case, we’re back where we started. The U.S. withdrawal means nothing because the pact meant nothing in the first place.

Second, the pact was, if purely symbolic, it was meaningful-symbolic rather than meaningless-symbolic. Meaningful-symbolic means that the countries were taking a first step toward actually reducing greenhouse gases rather than a first step toward pretending to reduce them. On this view, Trump’s action really was damaging—though I wonder whether it was anywhere near as damaging as eliminating the U.S. climate regulations which he was going to do in any event. We are truly in a mysterious realm of symbolism if it could be the case that Trump could advance the good of the world by keeping the U.S. in the agreement while eliminating U.S. regulations that actually advance the goals of that agreement.

Trump class #4: Immigration; The Travel Ban Executive Order

[Yes, the class met weeks ago. I’ve fallen behind.]

Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015)

Executive Order: Protecting the Nation from Foreigner Terrorist Entry into the United States, Jan. 27, 2017

Washington v. Trump, Ninth Circuit

Aziz v. Trump, Eastern District of Virginia

Executive Order: Protecting The Nation From Foreign Terrorist Entry Into The United States (2), March 6, 2017

Sarsour v. Trump, Eastern District of Virginia

Borjas, The Immigration Debate We Need, New York Times, Feb. 27, 2017

Higham, Strangers in the Land, chs. 3-4 (2011)

Adida et al.., Muslims in France: Identifying a Discriminatory Equilibrium, Journal of Population Economics, 27, 1039 (2014)

Many in the class seemed to think, and I agree, that the legal case against the travel ban was not strong. Why have so many courts ruled against the Trump administration? A few colorful hypotheses—that the judges are asserting their independence, that they loathe Trump and everything he stands for, that they think the executive orders are not really driven by security concerns. Or perhaps that the security concerns advanced publicly by the Trump administration are not the real security concerns that motivate them?

We can think of several types of concerns behind a travel ban. (1) The conventional, and obviously legitimate, worry that some particular group poses an immediate security threat—that they, or some non-trivial portion of them—enter the country with the intention of doing harm. (2) The more speculative worry that, even if they enter with benign motives, they will in the near future become radicalized and take up arms, or radicalize Americans, or some such thing. (3) The much more speculative worry that they will stay in the country, legally or not, and reproduce, producing an unassimilated minority group that eventually generates low-level but persistent serious social and security problems as in France (see the Adida et al. paper). (4) An entirely different concern—that they will push down wages and drain social services. (5) Various symbolic or cultural harms or racial harms—that they will spread illiberal ideas, or dilute the racial stock, or some such thing.

I suspect that Trump or some combination of advisers are possibility worried about (1) and (2), but are much more concerned about (3), (4), or (5). Some of Bannon’s and Trump’s statements can be interpreted as reflecting the latter group of concerns. But an executive action to block entry based on public rationales (3), (4), and (5), and probably (2) as well, would provoke a very strong political backlash, and would be rejected by the courts as well. Hence the emphasis on (1) in the executive orders themselves and related statements. But the judges don’t believe them.

Could (2), (3), (4), or (5) be legitimate justifications for restricting immigration? What if the administration had admitted these motives? Or persuaded Congress to endorse them and incorporate them into a statute? But Congress never would. The “establishment” would have none of it, despite (or because of) the long history of exclusion based on just these reasons in the United States. But why not, exactly? This is a bridge too far in current conditions, but it is the bridge on which many of Trumps’ supporters congregate.

Impeachment pros and cons

Pros:

1. Trump is unfit to govern. As explained in an excellent piece by Bob Bauer in Lawfare, we are experiencing an ongoing “governing crisis,” as a result of Trump’s character flaws. Vice President Mike Pence, who (unlike Trump) has political experience and seems at least competent, would ascend to the presidency. While liberals might worry that a unified Republican government led by a competent president would pass damaging legislation, the alternative—an incompetent government mired in a continuous crisis—is worse.

2. An impeachment could help strengthen political norms that Trump has broken. Chief among them:

a. The norm against conflict of interest and concealment of financial interests.

b. The norm against political interference in law enforcement functions.

Cons:

1. Impeachment might fail. If proceedings do not rouse sufficient public opinion against Trump, then a majority of House members will not vote for impeachment, and a supermajority of Senators will not vote for conviction. A failed impeachment could strengthen Trump and weaken his critics. The impeachment of Clinton actually increased public support for him as measured by the polls.

2. Trump’s worst behavior does not rise to the level of “high crimes and misdemeanors.” Specifically:

a. The attempt to obstruct justice is alleged, not proven; even if Trump did attempt to obstruct justice, he failed, as the investigation of the Russia ties continues.

b. The leaking of intelligence to the Russians may not have happened, and even if it did, it may have been justified, or reasonable under the circumstances, or excusable in some way.

c. The financial conflicts of interests are not illegal, and were known during the campaign, and hence endorsed, implicitly at least, by voters.

d. Trump’s various other actions—attacks on the press and the courts, boorish political attacks, and much else—have not resulted in any identifiable harm to any person or institution.

3. Therefore, impeachment of Trump would only weaken the presidency by normalizing an instrument that could be used for partisan purposes, or as a matter of routine, by Congress against the president, even a competent one. A weakened presidency and empowered Congress is a recipe for gridlock in our polarized age.

4. Impeachment would create lasting resentment among Trump’s supporters, and strengthen their conviction that the government is controlled by corrupt elites. This would in turn feed the populist movement for years to come, worsening political turmoil and gridlock.

My vote: No.

Not the 25th amendment

Contrary to Ross Douthat, the 25th Amendment is no solution to the problem of Trump. The simple problem is that it would require Vice President Pence to take the leading role, and Pence lacks the political power to pull it off. He must initiate the process by transmitting to Congress a “declaration that the President is unable to discharge the powers and duties of his office,” signed by other executive branch officials. Moreover, he would “immediately assume the powers and duties of the office as Acting President.” This would clearly look like a coup—to the world, to Americans, and, crucially, to Trump’s many remaining Republican supporters, whose support Pence would need as a vulnerable unelected president. It hardly needs to be added that Trump can obviously “discharge the powers and duties of his office”—he just does it very badly. On top of all this, the 25th Amendment—unlike impeachment—requires 2/3 in the House as well as in the Senate. A flimsy pretext along with enormous political hurdles that put all the focus on the one person who would most directly benefit from Trump’s removal—nothing could be a more perfect recipe for disaster.

Impeachment is a better option. A plausible obstruction of justice charge qualifies as a “high crime or misdemeanor,” and in any event impeachment is a political act, which requires no specific legal violation. That said, impeachment is premature, and is hardly worth discussing, until Republicans are ready to distance themselves from Trump.

A (very reluctant) defense of Trump’s firing of Comey

An employer faces a problem worker. The worker has botched several important assignments and ought to be fired. But there’s a problem. The worker has also disclosed wrongdoing in his workplace to the government. This means that the worker may be protected by statutory or common law whistleblower rules, which prohibit employers from retaliating against whistleblowers by firing them. What should the employer do?

He should fire the worker. If the worker cannot handle the job, he should make way for someone who can. It’s true that the employer also benefits—it may be that the government investigation based on the worker’s disclosures will grind to halt if the worker stops cooperating so he can find another job, or other workers fail to cooperate because they are afraid of being fired. But in a broader sense, the policy behind the whistleblower statutes and standard labor market prescriptions are reconciled. Workers will be deterred from incompetence; conditional on doing the job properly, the incentive to blow whistles will be preserved. The law should allow the employer to fire the worker.

Let us apply this analysis to Trump and Comey:

1. Comey seriously botched the investigation of Clinton. Hardly anyone defends him. Today, Trump’s critics implicitly argue that the Clinton error was a one-off thing. They continue to insist that Comey can be trusted to lead the FBI. Why exactly? Another possibility, which seems quite plausible, is that Comey does not belong at the head of the FBI. He can’t be trusted.

2. Trump harbored a strong motive to fire Comey, and—according to press reports—acted on it. He was frustrated that Comey was vigorously pursuing the Russia investigation, to Trump’s (apparent) detriment. However, if my earlier comments are right, this is not a sufficient reason for keeping Comey on the job. Indeed, Trump continues to face an investigation, and his act heightened distrust rather than ended his problems. He may have trouble appointing a loyalist to replace Comey.

3. Is it excessively optimistic to believe that in future FBI directors will avoid repeating Comey’s errors?

Many people complain that Trump has “politicized” law enforcement. The truth is that law enforcement is inherently political when turned against itself. The president is the chief law enforcement officer; he determines law enforcement priorities and policies. What happens when the president is suspected of unlawful behavior? In our system, this can only be described as a serious problem, one that has never been resolved.

The major effort was the post-Watergate independent counsel statute. This statute provided for the creation of independent counsels who were given the authority to investigate and bring charges against executive branch officials, including the president. The independent counsel was not subject to the authority of the Justice Department or president, and so could not be blocked from investigations.

Congress allowed the statute to lapse in 1999. By then, it was clear that the independent counsel statute caused more harms than benefits. The problem was that the decision to investigate and prosecute is shot through with political calculations, and lodging the authority to make those calculations in a free agent, unconstrained by public opinion, led to endless fishing expeditions and forms of harassment that undermined the effectiveness of the president and the executive branch. The notion that law enforcement—especially law enforcement directed at the president—can truly be apolitical died with the statute.

Where does this leave us? Politics may well be more effective than law, or “unwritten constitutional norms” as they are sometimes called. Trump has seriously damaged himself, thanks to the typically Trumpian incompetence with which the hatchet was swung. The timing, leaks, obvious vindictiveness, and much else, has further eroded public trust in Trump’s ability to manage the executive branch, and further raised suspicions about his ties with Russia. As Republicans in Congress begin to worry about reelection, they may push back. That may be the best we can hope for.

On the firing of Comey

In an ingenious bit of Machiavellian jujitsu, Trump fired Comey for incompetence, simultaneously: (1) eliminating an independent official who might act as a check on illegal behavior, (2) paving the way for the appointment of a stooge, and (3) enhancing Trump’s tough-guy image. Meanwhile, the Democrats are rendered mute by their earlier charge that Comey mishandled the Clinton email investigation, and Trump can no longer be accused of rewarding Comey for handing over the election to him. It’s hard to imagine a tidier outcome for Trump.

Has Trump increased the power of the presidency?

A New York Times article claims that he has, but does not provide any evidence or even an example that the author cites as illustration of the claim. The claim seems more like a journalistic tic than anything else.

What does it mean to say that the president has increased his power? This answer is surprisingly difficult to answer. Trump has not accomplished very much. He does seem to have increased deportation—though it is not clear he has, maybe he has just shifted priorities and garnered news coverage from reporters who assumed he would. But the president already possesses the power to deport people—to decide how strictly to enforce the immigration laws. In the area of immigration, Trump is exercising the same power that his predecessors had.

Most discussions of presidential power focus on the institutions that constrain the president. If Trump abolished the judiciary, then we would assume that his power has increased. But Trump has not abolished the judiciary. He has criticized it in ways that are troubling, but the courts seem unintimidated. They have blocked his immigration-related orders, using Trump’s statements against him in a way that courts have never done before in presidential-powers litigation. Trump’s rhetorical attacks on the judiciary seem to have weakened him, at least for now.

Trump’s election has revived the press. His rhetorical attacks have done nothing to stop this revival, while he has not taken any concrete steps to restrict the press’ power. Left-leaning organizations like the ACLU have been showered with money and prestige. They help finance the litigation that has blocked Trump’s initiatives. State and local governments are refusing to cooperate with his deportation programs. Civil servants in federal agencies have leaked his plans, causing political embarrassment and mobilizing opposition.

Then there is Congress. With party majorities in both houses, a president would normally be in an enviable position. Yet Trump has failed in his legislative program so far, while committees have—albeit reluctantly—launched investigations of his Russia ties. The most notable incident was his failure to persuade Congress to appropriate funds for the Mexican border wall—his signature promise to the Trumpian faithful. He has also been slow to make appointments, possibly because of worries that the Senate will not confirm the people he nominates.

Trump’s failure in Congress can be traced to yet another constraint—the president’s dependence on establishment leaders, especially (but not exclusively) in the Republican party. Trump, hampered more than his predecessors by his lack of knowledge about government and the world, has depended on his advisors more than most. Outside of military affairs, he has turned to business leaders. Business has nothing in common with Trump’s supporters, and has been steering him toward conventional Republican business-friendly policies, both domestic and international. If Trump triumphs in his deregulatory agenda—and it is far from clear at this point that he will—should that be interpreted as a result of presidential power or as a result of its failure?

But we’re only at 100 days. Trump’s attacks on the press, the courts, and (increasingly) Congress and the party system, might do long-term damage to these institutions by causing the public to see them as narrowly partisan rather than devoted (as they like to claim) to the national interest. But unless Trump can establish himself as trustworthy and competent to more than a narrow band of the electorate, it is hard to see how these efforts could result in an increase in presidential power. More likely, he will further reduce his own power as people transfer their loyalty from the president to institutions that seem more trustworthy. Or, maybe he will reduce the power of these institutions—by persuading people not to trust them—and the presidency as an office. In short, he might accelerate the long-term decline in public confidence in the national government and further erode its capacity to govern. That’s not a story about the rise of presidential power but about the decline of the national government as an effective source of authority.

Trump class #4: Immigration; The Travel Ban Executive Order

Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015)

Executive Order: Protecting the Nation from Foreigner Terrorist Entry into the United States, Jan. 27, 2017

Washington v. Trump, Ninth Circuit

Aziz v. Trump, Eastern District of Virginia

Executive Order: Protecting The Nation From Foreign Terrorist Entry Into The United States (2), March 6, 2017

Sarsour v. Trump, Eastern District of Virginia

Borjas, The Immigration Debate We Need, New York Times, Feb. 27, 2017

Higham, Strangers in the Land, chs. 3-4 (2011)

Adida et al.., Muslims in France: Identifying a Discriminatory Equilibrium, Journal of Population Economics, 27, 1039 (2014)

Many in the class seemed to think, and I agree, that the legal case against the travel ban was not strong. Why have so many courts ruled against the Trump administration? A few colorful hypotheses—that the judges are asserting their independence, that they loathe Trump and everything he stands for, that they think the executive orders are not really driven by security concerns. Or perhaps that the security concerns advanced publicly by the Trump administration are not the real security concerns that motivate them?

We can think of several types of concerns behind a travel ban. (1) The conventional, and obviously legitimate, worry that some particular group poses an immediate security threat—that they, or some non-trivial portion of them—enter the country with the intention of doing harm. (2) The more speculative worry that, even if they enter with benign motives, they will in the near future become radicalized and take up arms, or radicalize Americans, or some such thing. (3) The much more speculative worry that they will stay in the country, legally or not, and reproduce, producing an unassimilated minority group that eventually generates low-level but persistent serious social and security problems as in France (see the Adida et al. paper). (4) An entirely different concern—that they will push down wages and drain social services. (5) Various symbolic or cultural harms or racial harms—that they will spread illiberal ideas, or dilute the racial stock, or some such thing.

I suspect that Trump or some combination of advisers are possibility worried about (1) and (2), but are much more concerned about (3), (4), or (5). Some of Bannon’s and Trump’s statements can be interpreted as reflecting the latter group of concerns. But an executive action to block entry based on public rationales (3), (4), and (5), and probably (2) as well, would provoke a very strong political backlash, and would be rejected by the courts as well. Hence the emphasis on (1) in the executive orders themselves and related statements. But the judges don’t believe them.

Could (2), (3), (4), or (5) be legitimate justifications for restricting immigration? What if the administration had admitted these motives? Or persuaded Congress to endorse them and incorporate them into a statute? But Congress never would. The “establishment” would have none of it, despite (or because of) the long history of exclusion based on just these reasons in the United States. But why not, exactly? This is a bridge too far in current conditions, but it is the bridge on which many of Trumps’ supporters congregate.

Trump class #3: What is Trumpism? Why was Trump elected?

The readings:

Part 1. The Election

Lafsky, The Complete History of Dirty Politics: A Q&A on Anything for a Vote, Freakonomics (2007)

Profiles of U.S. Presidents, Richard M. Nixon—Dirty Tricks

Washington Post, Trump’s Campaign Promises [skim!]

Silver, Education, Not Income, Predicted Who Would Vote For Trump, Nov. 22, 2016

Osnos et al., Trump, Putin, and the New Cold War, New Yorker, March 6, 2017

Part 2. What is Trumpism?

Public Decius Mus [Anton], The Flight 93 Election, Claremont Review of Books (2016)

NPR, Interview of Richard Spencer, Nov. 17, 2016

Chait, Donald Trump, Pseudoauthoritarian, New York, Feb. 21, 2017

Taub, White Nationalism Explained, New York Times, Nov. 21, 2016

Inglehart & Norris, Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash (2016)

I taught this class a few weeks ago, based on assignments chosen about a month before that, and it hasn’t taken long for them to seem dated. At one time, I would have defined Trumpism as “economic nationalism + cultural backlash + personalist leadership.” That is the rhetorical Trump that carried him to victory in the primaries. I’m not sure it helped him much in the general election, where he mainly depended on Republican party stalwarts to show up to cast the ballot. After he was elected, Trump filled his cabinet with plutocrats, not populists. According to media reports, the populists’ standard bearer, Steve Bannon (a plutocrat-populist), is being shoved aside by Wall Street types in the administration.

Trump’s economic nationalism has generated few policy changes, just a lot more talk, while he has backed away from it by reversing his position on the export-import bank and other issues. On the cultural backlash front, many of his decisions seem little more than reflections of conventional Republican policy views—that, plus an occasional all-white-men photo. He’s even dropped much of his politically incorrect rhetoric and has adopted the politician’s conventional stance of obeisance to any group with political power.

By hurdling some cruise missiles into Syria, Trump might have hoped to strengthen his macho bona fides, but the action just made him look like every other modern U.S. president, and disappointed his intellectual followers who saw in him something new. The “personalist” style—the tweets and the reckless statements and the symbolic politics—have done him little good, producing an elite backlash among the press, the judiciary, and even the Republican Congress. While the base might like it, the base might also eventually catch on that Trump has accomplished little that he promised them and has instead kowtowed to the Establishment.

If the major element of Trumpism is anti-immigrant sentiment, as Anton argues, he has little to show for it. There is the botched travel ban and now the surrender to Congress on the Mexican border wall, and—this just in!—another defeat in court, this time on sanctuary cities. “Trumpism” might be remembered as a style of political bloviating rather than a set of substantive positions, one that the Democrats have already begun to imitate without having to give up any of their political commitments.

Trump class #2: Trump and the separation of powers

For our second class (which met a few weeks ago), I assigned the following readings.

Levitsky & Loxton, Populism and Competitive Authoritarianism in the Andes, Democratization, 20, 107 (2013)

Corrales & Penfold-Becerra, Venezuela: Crowding Out the Opposition. Journal of Democracy, 18, 99 (2007)

Valenzuela, Latin American Presidencies Interrupted, Journal of Democracy, 15, 5 (2004)

Pepinsky, Life in Authoritarian States Is Mostly Boring and Tolerable, Vox, Jan. 9, 2017

Feldenkirchen et al., Donald Trump Is the World’s Most Dangerous Man, Spiegel Online, Feb. 1, 2016

Blackman, Donald Trump’s Constitution of One, National Review, May 12, 2016

Brownstein, The Formidable Checks and Balances Imposing on President Trump, Atlantic, Feb. 16, 2017

The question I wanted to discuss is, What happens when a populist figure comes to power in a system characterized by separation of powers? Latin America seemed like a good place to look. In most (all?) Latin American countries, a presidential system prevails, unlike in Europe and elsewhere, where parliamentarianism is the norm. And the answer, if the Latin American example holds, is that the leader clashes with the legislature and the judiciary, which typically remain in the hands of the elites. Either gridlock or institutional damage results. Political scientists use the label “competitive authoritarianism” to capture a common feature of these regimes: while different groups compete for power and sometimes take turns (unlike in a real dictatorship), the group in power uses the resources of the state to suppress opposition and give itself advantages during the next election. Venezuela is Exhibit A.

Whatever one thinks of Trump, or our current political system, the U.S. seems far from a system of competitive authoritarianism in the Latin American style. It might help that, apparently at least, the Republicans control both the presidency and Congress. But the apparent unity masks a significant divergence: the congressional Republicans belong to the elites, while Trump won the election on a populist platform. It is becoming clear that Trump will either need to abandon his populist policies or clash with his nominal allies in Congress. The failure of Obamacare repeal may be the first sign of gridlock. The showdown over the budget, which centers around Trump’s popular but absurd promise to build a border wall, may be another.

Gorsuch’s bizarre “frozen trucker” opinion

Many people have commented on Gorsuch’s dissent in TransAm Trucking v. Administrative Review Board. Jed Shugerman presents a good account here. The case involved the interpretation of a law that forbids employers to fire an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public.” The truck driver in the case had pulled over to the side of the road and was in serious danger of hypothermia because the heater in his cab had broken down. The employer ordered him to stay put until a repairman arrived. After waiting hours, the driver unhitched the trailer and drove away to warm up, then returned to meet the repairman. The employer fired him.

The majority ruled that the employer violated the statute. While the driver operated rather than “refused to operate” the vehicle, the employer clearly retaliated against the driver for refusing to follow an order that would have put his safety at risk. Gorsuch dissents:

The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” 10 id. at 848. Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids. Indeed, my colleagues’ position would seem to require the addition of more than a few new words to the statute. In their view, an employee should be protected not just when he “refuses to operate a vehicle” but also when he “refuses to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period.

Gorsuch’s weird literalism, so obviously in contradiction to the sense of the statute, is hard to fathom. By his logic, a driver who disobeyed an order to drive his truck at an unsafe speed and instead drove it at the speed limit would not be protected by the statute. Driving is “operating,” after all. The driver’s only recourse would be to stop the vehicle immediately–perhaps to pull the key out of the ignition so he won’t “cause the vehicle to work” by pulling it over. Gorsuch is too smart to make such a boneheaded error. What gives?

A clue appears in the peroration at the end of the opinion:

The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood. Maybe Congress found it easier to agree that an employee has a right to sit still in response to his employer’s order to operate an unsafe vehicle rather than try to agree on a code detailing when and how an employee can operate a vehicle in a way he thinks safe and appropriate but his employer does not. Maybe Congress would not have been able to agree to the latter sort of code at all. Or maybe it just found the problem too time consuming and other matters more pressing. Or maybe it just didn’t think about the problem at all. Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.

Gorsuch is sending off signals to Federalist Society headquarters. He asserts, mainly in code, that he subscribes to textualism, the reigning conservative theory of interpretation. This is good to know, but it has nothing to do with the case. Even when Congress makes compromises, or rushes through drafting, or fails to anticipate every possible future contingency, it depends on courts to give a reasonable interpretation of its statutes. Otherwise, courts undermine those statutes rather than enforce them.

Should the Democrats filibuster Gorsuch?

Game theory is a branch of mathematics that enables the analyst to rigorously analyze a decision problem in order to come to a completely indeterminate conclusion. The game-theoretic accounts of the filibuster question illustrate this axiom. They often start with the idea that Republicans and Democrats in the Senate are playing a repeated prisoner’s dilemma. The Democrats must filibuster the Republicans in order to retaliate against the Republicans for refusing to hold hearings on Garland. Otherwise, the Republicans can get away with cheating. But it’s far from clear that Democrats do best by retaliating rather than attempting to reestablish a cooperative equilibrium (where their payoffs are, by hypothesis, greater). Meanwhile, if the Republicans sincerely think that refusing to hold hearings on Garland was justified retaliation for the Democrats’ elimination of filibusters for lower court judges during the Obama administration, then they will regard the Democrats’ filibuster of Gorsuch as cheating, justifying another round of retaliation, to the Democrats’ detriment. It is possible that the game is not worth the candle for one or both sides. Do Republicans really care if they can no longer filibuster nominees if the Democrats take the presidency and the Senate? How likely is that, and will anyone remember any of this in 2020 or 2024, and more to the point, how do the Republicans know that the Democrats won’t, at that moment, abolish the filibuster in any event?

Then there is the question of cooperation within parties. If the Republicans abolish the filibuster, that will enhance the power of the extremists at the expense of the moderates. Why would the moderates agree to a loss of power? Or maybe the extremists can arrange a payoff of some sort. Democrats who criticize the Gorsuch filibuster argue that they should keep their powder dry until one of the liberals leaves the court, but is there any reason to think that Democrats will have an easier time then? Who knows.

Here is another, simpler way to think about the Gorsuch filibuster. It has nothing to do with inter-party cooperation in the Senate, but is a referendum on Trump.

Confirmation of Gorsuch would be Trump’s first real success as president. If Democrats block confirmation, they will strengthen the impression that Trump is in over his head, a political loser. Everyone will interpret the refusal of Republican moderates to support the nuclear option as evidence of the toxicity of the Trump brand.

If Democrats lose the confirmation fight, then Trump will receive a political boost. But will the boost be greater than the boost that he would have received from a Gorsuch confirmation in the absence of a filibuster? I think not. Gorsuch’s confirmation, in other words, provides an opportunity to express publicly the intensity of opposition to the Trump administration. The filibuster is just the means for expressing a high degree of opposition. Trump is one of the least popular presidents in modern history; what do the Democrats have to lose?

Trump and the Constitution: populism

I’m teaching a seminar called “Trump and the Constitution.” You can find the current version (of the ever-changing) syllabus here: Trump syllabus. Our first class looked at the history of populism.

Class 1. Populism in the United States

Remini, Andrew Jackson, chs. 1, 5-8

Goebel, The Political Economy of American Populism from Jackson to the New Deal, 11 Stud. in Amer. Pol. Dev. 109 (1997)

Sanson, “What He Did and What He Promised to Do…”: Huey Long and the Horizons of Louisiana Politics, Louisiana History: The Journal of the Louisiana Historical Association (2006)

Bannon, Comments at Vatican Conference (2014)

Trump, Inaugural Address (2017)

We also watched a video of Trump’s visit to the Hermitage, and the famous “hick” speech from All the King’s Men.

Bannon claims the populist mantle for Trump. Is he right to do so?

Trump certainly mouthed populist themes on the campaign trail. He railed against the “elites,” the corruption of Washington, and the party establishment. He purported to act on behalf of working men and women. He appealed to people who felt left out.

Still, Trump is no Jackson. Jackson was an experienced office-holder, a professional politician. Read Jackson’s inaugural address: it could hardly be more tame. Long was also an experienced, professional politician. Both Jackson and Long were considerably more politically knowledgeable than Trump is. They seem a lot more intelligent, or at least, sophisticated about politics. Watch this video of Long.

Both Jackson and Long had strong ideological commitments, which they pursued relentlessly. The question arose in class whether Trump does as well. One view is that the does not—he is an authoritarian without a cause. The other view is that he does—he is an economic nationalist above all. We will see.

Both Jackson and Long are remembered for paying scant heed to checks and balances. But while Long is frequently condemned (possibly unfairly) as a kind of proto-fascist, historians admire Jackson for strengthening the presidency at a time when it may have been too weak. At the same time, he did not always use his powers to advance the public interest—the destruction of the Second Bank of the United States comes to mind. And whatever Jackson’s intentions, he fell prey to an inherent logic of politics—throwing out the old elites, but replacing them with another set of elites, his wealthy supporters, rather than the “people.” There is not much in this history to make us optimistic about Trump except that we survived it.

Is a system of checks and balances compatible with populism, authentically pursued? Or does one or the other have to give?

We will revisit the relationship between populism and separation powers later this week, when we take a look at “competitive authoritarianism” in the Latin American presidential systems.

Why liberals (and conservatives) overestimated Trump’s threat to democracy

The Wall Street Journal editorial page makes fun of liberal academic and commentators who warned that Trump aspired to dictatorship. (N.B.: many conservatives also warned that Trump aspired to dictatorship, but never mind.) Far from demolishing checks and balances, Trump has been thwarted by them at every turn. He has submitted to judicial orders halting his travel bans. He has given up on health care reform after Republican members of Congress nixed it. He helplessly throws tantrums as bureaucrats leak his plans. He has not prosecuted journalists, set mobs on his political enemies, spied on Democrats, or set up a paramilitary force of brown shirts. He has huffed and puffed—and hyperventilated.

I think the commentators can be forgiven. They were merely taking Trump at his word—pretty much the biggest mistake one can make these days, but a mistake that many respectable people have made in the past. On the campaign trail and in office, Trump has made promises and representations that hinted that he would roll over any person or institution that stood in his way.

What fooled everyone is that Trump made promises that no normal politician has ever made. Normal candidates for the presidency always tell us that they will work with Congress, honor the press, curtail executive power, consult the people, compromise with the loyal opposition, and govern in the interest of the general public rather than a specific group. We never believe these candidates because all people who want to be president claim to believe in truth and justice—and nearly all of them have broken their promises once in office.

What was strange about Trump was that his promises to disregard checks and balances seemed like promises against interest—and, for that reason, they seemed credible. What commentators did not understand is that Trump realized that pretending to want to be a dictator electrified his political base, and gave him his victory in the primaries. Perhaps the only people who did not believe Trump were ordinary Republicans—the ones who took him “seriously but not literally,” held their noses, and voted for him in the general election.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School