An Absurd System Lets the President Be Above the Law

A President must respect the independence of the Justice Department. It is critical. If he does not grant them independence, justice can be seriously compromised.

Yet, even with this expectation, the president has ultimate control over the Department of Justice. He appoints the FBI director, the attorney general, and the deputy attorney general, and he can legally fire them without cause. The president can also order the firing of a special counsel, even when that counsel is investigating the president himself. Thus, the system is set up so that the chief executive can indeed obstruct a criminal investigation of himself. Shouldn’t it have been set up to disallow it? How can you design a system that expects the president not to overstep bounds while it also allows for the overstepping of those bounds? It is an absurd contradiction.

We have no codified rules that place a firewall between the president and the judicial wing. We only have norms. All the American people can do is hope that the president does not push those boundaries out of his own sense of decency and honor. Yes, we only have the honor system. This is madness.

Because what if the president has little-to-no decency and honor? What if he does not care about what looks improper? What if he stampedes on norms? Then you have Trump and the situation we now confront with Mueller’s Russia investigation.

Not to worry, however. There is another check on the president to stop him from interfering with judicial independence. We have Congress — a body which can impeach the president for such interference. But what if Congress is made up of partisans who have no intention of holding the leader accountable for obstruction? What if members of the congressional majority provide cover for the president? What if Congress goes to war against the FBI and the special counsel on behalf of the president to undermine the investigation? What then? Then you have no checks and balances. There is only complicity to obstruction.

But there is another check on the president’s power, right? Obstruction is illegal after all. Maybe he will be indicted by the special counsel. Tough luck there too, because it is unlikely that a sitting president can be indicted. Okay. But he could still be indicted at a later point, correct? Not so fast. The president may even be able to pardon himself — there is no legal determination on that.

So, here’s what we have: The American people can depend on nothing and no one to constrain the president. Instead, the system helps ensure that he is not constrained. He has authority over the Department of Justice, even when it is investigating him. A Congress of the same party will do everything and anything to protect him. There is no guarantee that presidential advisers will hold him in line. And if all that is not a blessed enough situation for the president, he probably cannot be indicted even if an investigation is allowed to continue and it does determine obstruction. There is little chance of a later indictment as he can be pardoned by his replacement — or perhaps even by himself. Who thought any of this was a good idea? How is giving president authority over an “independent” Justice Department in and of itself a good idea? Maybe we should throw away this entire a structure and start over using greater wisdom?

Because currently, we have created a system where the only thing standing between a president and obstruction is his own sense of honor. We have no recourse but to cross our fingers that he will have some degree of moral fiber to respect judicial independence. We only have that honor system. And without his own honor and character keeping him in check, the president can do whatever he wants.

For all of our insistence that the president is not above the law, it turns out: He kind of is.

America was founded on a principal that we are not lead by a king with absolute power. But when it comes to a president’s relationship with a supposedly independent Justice Department, he is allowed absolute power — if he is willing to take it.

The king is dead? No. All hail the dishonorable king.