Donald Trump and the Tenure of Office Act

The Tenure of Office Act of 1867 prohibited the President from firing cabinet officers without Senate approval. President Andrew Johnson took strong exception to the law and deliberately broke it. He fired Secretary of War Edwin Stanton. 
Mr. Johnson was impeached by the House, but he was not removed by the Senate. He was acquitted by only one vote. However his decision was validated by the US Supreme Court decades after his own death.   

In 1926, Chief Justice (and former President) William Howard Taft, writing for the majority in Myers v. United States, opined that the Tenure of Service Act was unconstitutional because a President has the unmitigated right to fire any subordinate who is confirmed by the Senate. 

Today, President Trump is being investigated for obstruction of justice because he fired the FBI director. Special Counsel Bob Mueller is checking to see if the President violated 18 USC 1505.  

The obstruction of justice statute prohibits anyone from corruptly endeavoring to influence “the due and proper administration” of the law under which any proceeding before an agency like the FBI is being had.  

In the President’s case, Mr. Mueller is checking to see if he fired former FBI Director Comey because the latter would not drop the investigation of General Mike Flynn. The theory is that if Mr. Trump had a corrupt motive for firing Comey, then he would have obstructed justice. 

The problem with this theory is that, as applied to the President, Section 1505 cannot limit his power to fire subordinates; otherwise the statute would be no different than the unconstitutional Tenure of Office Act.   

To say that Mr. Trump’s firing of Mr. Comey was obstruction of justice is to imply that sometimes, at least, the President must get Congressional permission before firing an appointed official. That runs afoul of the holding in Myers.   

Now does this mean that Trump cannot or will not be impeached? No. If Congress can impeach (and almost remove) Andrew Johnson for breaking an unconstitutional law, it can do the same for Donald Trump. But to say that Mr. Trump committed a criminal offense by firing Mr. Comey is absurd. 

Pursuant to the separation of powers doctrine, Congress cannot limit the President’s ability to fire appointed officials. Otherwise Congress would be assuming executive authority in contravention of Article II, Section 1 of the Constitution.    

Unfortunately in their haste to burn the President to a stake, liberal and progressive talking heads overlook the sublime truth that the Constitution says what it means and means what it says, to-wit:

“The executive Power shall be vested in a President of the United States of America.”

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The Real Constitutional Crisis

It has been leaked to the Washington Post tonight that President Trump is being investigated by Special Counsel Mueller for obstruction of justice.

As best as I can tell from the reporting, the ostensible basis for this allegation of obstruction is Mr. Trump’s firing of James Comey.

If Mr. Comey’s firing truly is the basis for this investigation of the President, then we have a much bigger constitutional crisis than even the liberal media would suggest.

The Constitution vests “[t]he executive power … in a President of the United States of America.” (Art. II, Sec. 1, Cl. 1.)

Notice the use of the definite article “the,” which modifies the phrase “executive power.” Also notice the singular indefinite article “a,” which modifies “President of the United States of America.”

Whatever executive power exists in the federal government, the Constitution vests it in one – and only one – person, to wit: the President of the United States of America.

Because there can only be one President at a time, no person can exercise superior executive power than the President.

Not Bob Mueller. Not James Comey. Not Rod Rosenstein. Not even Jeff Sessions.

Under the Constitution (i.e., the supreme law of the land), nobody can execute a federal law without the direction or the supervision of Donald J. Trump.

Put simply, everyone who enforces federal law reports to the President, not the other way around.

President Trump was not accountable to James Comey. Rather, James Comey was accountable to President Trump.

President Trump is not accountable to Bob Mueller. Rather, Bob Mueller is accountable to President Trump.

With that framework in mind, let’s pretend that one day, in the not-so-distant future, a politically ambitious man is appointed director of the FBI. (Let’s call him “J. Edgar.”)

J. Edgar controls the most powerful investigative agency in the world. The FBI is able to perform wiretaps on just about anybody inside the United States. If a person lies to an FBI agent, it is a felony. Best of all, FBI files are some of the most classified pieces of intelligence in all of government. Basically, if dirt can be found on someone, the FBI is the one agency on earth that can find it.

J. Edgar remembers what happened to President Trump in 2017. He remembers how Donald Trump was accused of firing the FBI director for not stopping a particular investigation. J. Edgar recalls how this was considered obstruction of justice.

Being the smart cat that he is, J. Edgar puts two and two together. He reasons that, in the name of protecting national security, he should find some reason — any ostensible purpose — to investigate the President. If he finds anything, he can use that to blackmail the commander-in-chief (or at the very least, to deter the President from ever firing him.)

But even if he does not find anything, he can keep the investigation open indefinitely. Now that the Trump/Comey/Mueller precedent has been set, J. Edgar knows that if the President fires him for doing an unauthorized investigation, the President may be impeached or removed from office for interfering with the “due and proper administration” of an FBI investigation. (See 18 USC 1505.)

Thus, J. Edgar knows that by simply having an active investigation of the President, he can make the President kowtow to him.

Which brings me back to the present… If President Trump (or any future President) can be investigated — and perhaps even indicted, impeached and/or removed from office — simply because he suggested that the FBI director end an investigation, then the FBI director is now the most powerful person in government.

After all, the FBI director is now the only person in Washington with the de-facto power to blackmail the President of the United States.