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Constitutional Crisis

Throughout the day, rumors have been circulating that Assistant Attorney General and overseer of the Mueller probe Rod Rosenstein was about to resign or be fired. The decision has apparently been put off until Thursday.

This is the beginning of an actual constitutional crisis, a conflict within the republic but outside of the Constitution itself. It does not automatically lead to the firing of Mueller, but it makes it much more likely. This is a time for all Americans to be ready to act to preserve freedom as we know it.

They didn’t think of everything.

For reasons that are not understood, the Founding Fathers completely neglected the principle of an independent prosecutor in the Constitution. They clearly saw the removal of a President as a purely political act, which is actually rather baffling. The independence of the Judicial Branch was carefully preserved with a series of checks and balances, but not the independence of prosecution.

While there was a clear understanding of the primacy of law as the cornerstone of the Republic, the enforcement of it in the extreme was left as to a political process.

The intention was that the removal of a President or a judge was something to be left to the people, or more accurately their representative, through the impeachment process. But this presumes that crimes would occur in public and not require any investigation or other process for uncovering them. It is a strange flaw in many ways, yet it is at the heart of our system.

Justice is famously blind. It’s not stupid.

Years of tradition and legislation have created an independent Justice Department, an agency itself never described in the Constitution. It has become obvious over time that there is a need for an arm of the government which has the ability to investigate and lay out the case for the purpose of a very public trial by various mechanisms that are well described.

The Special Prosecutor was developed long ago for the purpose of correcting this error.

The problem is that everyone in the Justice Department is appointed by the President, and at some level ultimately reports to the President. Legislation has restricted the ability to fire anyone in that department, but that also relies on Congress to be present to do its particular job.

Removing the independence of the Justice Department very much triggers Congress to act in some way, but we all know that there are many reasons why they may not. An election is coming in six weeks. Congress is not only the same party as the President, but is unusually subservient to him. What we do have in the Constitution does not offer us much of a guide as to how to get through this, meaning that extra-constitutional action is likely.

That’s a fancy word for street action and mobilization.

Archibald Cox

It is horrible that it is coming down to this, but we have been here before. Nixon did indeed fire special prosecutor who was closing in on him, Archibald Cox, without any immediate ramifications. This action was a turning point with the public in that it made it clear that there was something which had to remain hidden. Public pressure was essential to galvanizing Congress into action.

But if Congress does not act, where are we then? We are operating far outside of our Constitution and the ability of our most basic law to maintain itself. This is a seminal omission in the otherwise thorough and flexible document which has guided us for nearly 230 years.

This is a test for the very basic core of our Republic and the rule of law on which it is based.

3 thoughts on “Constitutional Crisis

  1. Interesting points here. In some states the Attorney General works for the Governor as an appointed cabinet member, and on other states, including Minnesota, is an independently elected official. How much difference does this make in practice? I believe that many in the Federal judiciary do recognize that trump is a serious threat to the rule of law, but Sessions is also a crank in his own right. He only looks reasonable alongside trump. Nixon had to go because the leaders of both parties considered a criminal President intolerable. But this does not to be the case with the present Republican Senate and House leadership. I’m thinking of Wilson and Adams, both of whom were able to criminalize and imprison political opponents. The Republic survived Nixon, Wilson, and Adams, but not undamaged. I think it will survive trump, but not undamaged.

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