//  1/18/19  //  In-Depth Analysis

Take Care is pleased to present a symposium on Andrew Cohen's important new book, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford University Press).

How to hold a president accountable? Andrew Coan’s Prosecuting the President offers a thesis—and represents an effort. Both target the public. According to Coan, the American people ultimately determine the extent to which leaders are held accountable in our country. It is no coincidence, then, that Coan’s own effort at advancing the cause of accountability addresses this same audience. Prosecuting the President provides the public with a valuable resource: information about the many thorny legal questions implicated by special prosecutors, all of it made vivid, relevant, and accessible to the general reader.

Coan’s effort is particularly important in 2019. In a world where only a quarter of Americans can name the three branches of government, any opportunity to improve civics-related education presents an imperative. And even for those who understand how our government works, there is a need at this moment, with so many complicated legal issues swirling, for sophisticated rules and concepts to be transformed into something digestible. These realities help to explain my own work in this area with Kathryn Watts, as well as that of Cass Sunstein and others. Prosecuting the President considerably advances this growing body of work.

As for Coan’s thesis, it quickly leads the reader to wonder how it might translate to the present day: to what extent will the American public insist that today’s leaders are held accountable for lawlessness uncovered by the special counsel? At least four factors suggest that it will be difficult—perhaps more difficult than in the past; perhaps not—for the American public to hold this particular president accountable. Prosecuting the President provides historical and legal context for each of these four factors. And in doing so, it also helps to counteract them.

Lack of transparency. Coan’s work focuses on how public pressure can bolster and protect investigations into a president’s activities. It is difficult to understand how this pressure can develop, however, if the public does not know what a special prosecutor is doing and what challenges he is facing. It is difficult to understand, for example, how the public effectively can object to interference with a special prosecutor’s investigation if the public does not know whether such interference is occurring. This concern quickly implicates Robert Mueller’s work, which is based on a set of relatively recently enacted regulations that—as Coan adeptly explains—represent a compromise and a balance. Accordingly, these rules are fairly nuanced (and at times complicated) with respect to where they allocate power, what information they require to be released to the public, and other important issues. One of the effects of these nuances is that it is difficult even for legal experts to understand what is happening inside the special counsel’s investigation, with some recently maintaining, for example, that interference with Mueller’s investigation may be imminent (or already happening) and others arguing that there is no reason (yet) to “panic.” While there is historical precedent for these sorts of challenges, opacity generally does not correlate well with effective accountability by the public.

Muddled narratives. Accountability also tends to assume that people have access to reliable, relevant information about a president’s activities. This dynamic quickly implicates the media. In the Trump era, however, many prominent media outlets have struggled to avoid partisanship and provide accurate information. Sinclair Broadcast Group provides a striking example. This powerful and far-reaching conglomerate has been brazen in its support of the President, even when that has come at the expense of accuracy. The President, meanwhile, has been aggressive in his own attacks on the media, and seemingly pathological in his dissemination of false information. As Coan explains, none of this is new—in the context of presidential investigations, America has seen its share of partisan press outlets, attacks on the media, and top-down misinformation. Still, the media-related challenges that are facing the country right now are troubling. And none helps a population hold a president accountable.

Political polarization. Presidents are popularly elected. To hold a sitting president accountable, therefore, some members of the electorate (and Congress) are likely going to have to break from party. Yet in 2019 Americans are highly polarized politically—and in a manner that closely tracks support for the president, and that also seems to lead some people to resist the open-mindedness and political flexibility that may be required for effective accountability. It is here that Coan’s discussion of the Watergate fallout is particularly instructive, as well as concerning: political polarization is higher now than it was during that period. Whether this distinction matters remains to be seen.

The breakdown of norms. In Coan’s words, for a president to be held accountable—for “a special prosecutor to generate significant political pressure” on the president—“the public must possess widely shared standards for acceptable presidential behavior.” This invocation of norms in the context of accountability seems appropriate and insightful. And it too is concerning in light of our current political moment. Norms in the Trump appear to be breaking down, a phenomenon that receives attention in Coan’s work as well as in the work of many others. This breakdown of norms potentially could have profound effects across a wide range of matters—including those implicating the public’s response to a president’s lawlessness.

These four factors are deeply troubling for anyone committed to accountability. Prosecuting the President recognizes these implications and, in response, issues an evenhanded but pointed call to arms. Coan's work itself constitutes an important effort in this direction.

Of course, no one knows how Mueller’s investigation (or, for that matter, Trump’s presidency) will end. Such a determination would require the work not only of a law professor, but also a political scientist, a sociologist, and a psychic. Still, a contribution like Coan’s stacks the deck ever slightly more in favor of accountability. As a related matter—and at least as importantly—Prosecuting the President adds to a growing chorus of scholars, journalists, and others imploring their colleagues, and the population at large, to care much, much more about making civics-related information accessible to everyone.

Versus Trump: On Flynn, Bolton, and Mary Trump

7/5/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the D.C. Circuit's extraordinary intervention in the Michael Flynn case, and then move on to two lawsuits seeking to block publication of books: John Bolton's and Mary Trump's. Listen now!

Charlie Gerstein

Civil Rights Corps

Republican Hoopla About Trump Judicial Confirmations Ignores the Important Facts

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I've found 79 cases where Trump-nominated appeals court judges have written or joined opinions that are so extreme that even other Republican-appointed judges have disagreed with them

Elliot Mincberg

People For the American Way

The DACA Decision is Trouble for Discrimination Law

6/24/20  //  Commentary

The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.

Jessica Clarke

Vanderbilt Law School