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.

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Why the Electoral College Matters

When the United States Constitution was ratified in 1787, the Framers were afraid of tyranny. Having recently secured their independence from England, the Framers did not want to trade one dictator for another.  However, as much as they feared the tyranny of the minority, they were also worried about mob rule. After all, one demagogue leading the masses would be no different than a king issuing decrees for all to follow.

To prevent tyranny of any form, the Framers created a four-tier system for the selection of our national leaders, to-wit:

  • The House of Representatives would be elected by the people, directly.  Every two years the people of each State would pick the members of the People’s House.  Thus, the people would be one (1) step removed from the members of the House of Representatives.
  • Members of the Senate, though, would not be picked directly by the people. Although this method has since changed, the people would select the members of their State legislatures; the State legislators, in turn, would appoint the Senators to six-year terms.  Thus, the people would be two (2) steps removed from their Senators.
  •  The President also would not be popularly elected.  The people would select the members of their State legislature; the State legislators, in turn, would appoint electors (i.e., the Electoral College); the electors, in turn, would select the President. Thus, the people would be three (3) steps removed from their President.  (Although every legislature has opted to appoint the electors based upon a popular statewide vote of the people, the Constitution does not mandate this procedure.  In fact, if a State legislature ever wanted to appoint the electors directly, they absolutely could.  So while it appears as if the people are picking the electors, technically they are not.)
  • Finally, the Judges would be selected by the President and confirmed by the Senate.  As such, the people would select their State legislators; the State legislators would appoint the Senators and the electors; the electors would appoint the President; the President and the Senate would pick the Judges.  Thus, the people would be four (4) steps removed from their Judges. 

Because the Constitution incorporates the Separation of Powers Doctrine — by delegating Legislative power to the House of Representatives and the Senate, Executive power to the President, and Judicial power to the Judges — no single person or group could make all of the decisions in our federal government.

However, even if one faction could control all federal power, the Constitution utilizes other safeguards to liberty–by restricting federal power and by reserving all other rights to the States and to the people.

Per the Framers, every election put before the people would be on a State-by-State basis.  This is because our Framers recognized the need for compartmentalization of power.  As long as the States remained sovereign — and as long as the people voted as States — our nation would remain a free people.  But as soon as we concentrated power in the hands of a central government, by limiting the role of the States, liberty would be placed in peril.

Since the recent defeat of Hillary Clinton, liberals have lamented about the Electoral College, lambasting its archaic nature.  They are absolutely wrong.  Put simply, we are a free people because we are the United STATES of America.  Any change to the Constitution that would marginalize the critical and sovereign role of the States would signal the very demise of our way of life.  Creating a national referendum for the most important position in the federal government would do just that.

The Electoral College forces the President to look at the needs of fifty sovereign States (and the District of Columbia).  However, if the President is elected by a national popular vote, the State lines will blur quite rapidly.  And if this happens, the delicate balance created by the Framers — and the liberty that it protects — will be gone forever.