The AG And The President—Both Impelled By Duty?

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Alan Keyes Former Assistant Secretary of State
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Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.  These most deadly adversaries of republican government might naturally be expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant [sic] in our councils.  How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? (Federalist #68)

But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department.  Here they are pure and unmixed.  There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition—vigor and expedition, and this without any counterbalancing good. (Federalist #70) 

This week I published an article in which I argue that President Trump is right to see Jeff Sessions’ recusal from involvement in the supervision of Special Counsel Mueller’s investigation as unfair to him (Mr. Trump) in his capacity as President. This argument surprised, and even dismayed, some of my readers.  They know that I did not at any stage support Mr. Trump’s candidacy for President.  They know that I remain unconvinced that he has in fact abandoned views, contrary to the stands he professed as a candidate, on issues of God-endowed right and rights, such as observance of the “laws of nature and of Nature’s God in respect of the institution of marriage and family life.”

They may also remember my expression of support for the GOP Senators, prominently including Jeff Sessions, who had the integrity to stand firm against US Senate confirmation of Loretta Lynch, on account of her “embrace of Obama’s lawless abuses”.  The same sense of respect for preserving due process of law doubtless informed Mr. Sessions’ decision to recuse himself from involvement in the supervision of Special Counsel Mueller’s investigation.

The Attorney General’s mistake lies in his failure to consult Mr. Trump prior to taking action, so that the President could decide whether Mr. Sessions’ personal recusal was consistent with the Attorney General’s responsibility to the President, as a member of the Executive body. The President is, after all, the one who must ultimately be held personally accountable for maintaining the vigor and integrity of the Executive branch, in accordance with his sworn duty to preserve the Constitution.

The Constitution anticipates the impossibly difficult choices that must fact the occupant of the Oval Office if forced to deal with accusations that touch upon the President’s personal capacity to decide and act, independently of any and all improper influences. Its provisions do not place either the President, or anyone acting by his authority, in the position of being the judge of their own possible offenses in this regard.  The power to accuse the President of impeachable conduct, and therefore the power to dismiss such accusations as unwarranted, is vested exclusively in the US House of Representatives. 

It is tragic and directly damaging to the Constitutional self-government of the people of the United States to see dissension embarrassing and weakening the administration of our national executive, exactly as Alexander Hamilton predicted in Federalist #68.  It is deeply regrettable to see President Trump and his Attorney General being, each of them, compelled by a sense of duty to the Constitution, to present the spectacle of such dissension to the American people and the world at large.

However, neither of them are simply to blame for this situation, since neither has the power to remedy it.  That power is vested in a simple majority of the US House of Representatives; a majority that the GOP’s House leadership is, by mandate of the last election, presently able to mobilize in order to investigate any and all accusations of improper Russian government influence on our governmental and electoral processes, insofar as they touch upon the personal responsibility and independence of the President, the members of his Executive body, or others closely associated with him. 

The Chief Executive is not supposed to be the judge of his or her own offenses.  The occupant of the Oval Office is supposed to be subject to the judgment of a majority of the US House. Partly with this in mind, the House is subject to frequent elections, on terms framed to assure a due dependence on the political will of the people; and greatly complexify the machinations of foreign powers trying to subvert their sovereignty. When will Paul Ryan and his colleagues in the GOP’s House leadership apply themselves to understanding, and carrying out, the activities that could curtail the present unseemly spectacle? When will they remember that the power to impeach is also the power to declare that no accusations are in evidence that warrant impeachment?

Are they failing to act because they put their own partisan selfish interest above the nation’s good?  Are they failing to act because they disbelieve the President’s repeated statements that he and his associates never acted improperly?  The first is a wrongful partisanship; the second is a distrust of Donald Trump’s integrity inconsistent with their Party’s decision to recommend him for President in last year’s election.  If he is worthy of the nation’s trust, he has nothing to fear from a fair investigation of the charges being malicious bruited against him every day. 

If they, and their Party, are worthy of the nation’s trust, they will prove themselves capable of pursuing a fair and impartial impeachment process, and of having the courage to represent to and for their constituents, the conclusion it warrants, one way or the other.  By Constitutional provision, this process is not the business of the US Senate.  It is not the business of some special counsel, wielding executive power without the authoritative supervision of the Chief Executive. In dealing with accusations of impeachable conduct against the President, the Constitution reserves the initiative, to the people’s House, not the White House. 

Due diligence by the GOP House majority would free the President from continual pressure to react against the ruthlessly factious witch hunt the dereliction of the GOP’s House leadership now permits Donald Trump’s most vicious detractors to carry on. The GOP majority in the House has the Constitutional power and prerogative to derail this witch hunt.  On behalf of the people they are supposed to represent, they are duty bound to do so. That will be fair to the President; fair to the effective administration of the US Government; and fair to the constituents, whose political good will they are supposed to depend upon and put into action.