|United States Supreme Court|
Would it be a violation of the rule of law not to prosecute Donald Trump after he leaves office on January 20, 2021?
In a recent opinion article in the New York Times, Andrew Weissmann gave a resounding “Yes” to this question. Mr. Weissmann was a senior prosecutor in the Mueller investigation. Enough evidence to support a charge for obstruction of justice was found during the investigation. He also acknowledged that a renewed investigation “would further divide the country and stoke claims that the Justice Department was merely exacting revenge.”
Should the next attorney general ignore this evidence by not appointing a special counsel to investigate? Weissman is aware of two reasons for sweeping the evidence under the rug. The first is based on the principle of utility. Do the good consequences of not investigating and prosecuting outweigh the bad?
The good consequences of not investigating are that the country would not be further divided by an investigation of Trump’s behavior while in office. A decision to investigate would have political consequences that would only make the divide wider. Trump would be declared a martyr by millions of his followers. This would both keep him in the headlines for several months and give him more encouragement to run for president again in 2024.
A bad consequence of ignoring evidence of obstruction of justice is that it "would make any future special counsel investigation toothless” (Weissmann). A refusal to investigate Trump would set a precedent from which proposals to investigate similar behavior of future presidents would be easily dismissed.
There is a different reason for not ignoring the accumulated evidence for Trump’s alleged obstruction of justice. It has nothing to do with consequences. It is based entirely on “the rule of law.” Unfortunately, Mr. Weissmann does not explain what this familiar phrase means. He writes that if Trump succeeds in pardoning himself from federal criminal liability, the “states like New York should take up the mantle to see that the rule of law is upheld.”
What does this mean? What is the rule of law?
As a first step toward answering this question, I will use Mr. Weissmann’s analogy of an imaginary U.S. president who is immunized from prosecution for committing a “serious violent crime” while in office.Suppose, for example, he is suspected of shooting and killing his chief of staff on the last day of his presidency. What does it mean to say that the rule of law would not be upheld if the decision of the attorney general was not to launch an investigation that could lead to the prosecution of this president? It means that the president stands above the criminal law and is free to act arbitrarily. While in office, he or she can kill anyone he wants and get away with it.
During a 2015 campaign rally, Donald Trump said "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters. But in a government that abides by the rule of law, he would and should lose his liberty, if not his life. Whether he loses voters is irrelevant. The rule of law demands that this imaginary president would and should be prosecuted and convicted of murder under the same laws and procedures that apply to all Americans.
By analogy, the
president of the United States of America is not free to obstruct justice while
in office. He is not above the law and
he is not free to act arbitrarily. He has no more right to obstruct justice than he has a right to shoot and kill his chief of staff.
Although the rule of law is not an explicit legal or constitutional obligation, it is implicit in the oath of office: “I, _________ , do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” This oath is not only taken by the president. It is also taken by all appointees to the Executive branch, including the Attorney General.
When one swears an oath to “bear true faith and allegiance” to the U.S. Constitution they create an obligation to bear true faith and allegiance to the rule of law. The latter obligation is found in the opening passage of the Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The words “establish Justice” imply the establishment of the rule of law. Justice is what the founders believed was sorely lacking under British rule and what they wanted to firmly establish in their new country. Justice was lacking partly because colonial government did not always operate under the law. The Declaration of Independence gives a long list of “a long train of abuses and usurpations” suffered by the people under the rule of the British monarch and Parliament. Several of these abuses can be interpreted as violations of the rule of law. Some of their complaints mention arbitrary refusal of royal assent to and others specifically mention obstruction of justice.
If violations of the rule of law were part of what drove our country to rebel against the British colonial government, then surely the next Attorney General appointed by the President of the United States should be driven to investigate whether Donald Trump obstructed justice while in office. And if the adherence to the rule of law is implicit in the oath of office taken by attorneys general, then that oath would be “toothless” if they ignored evidence that might lead to the prosecution of Donald J. Trump.