//  1/16/19  //  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).

“It is a central fallacy ... to think that a supremely political object can be accomplished without politics.” So sayeth former Solicitor General and present stalwart of the Harvard Law School Charles Fried during the oral argument in Morrison v. Olsen. Fried’s words come close to the end of Andrew Coan’s fine and brave new book, “Prosecuting the President.” Fried’s words encapsulate Coan’s book, but also hint at a puzzle that sits uncomfortably with the reader when she puts the work down.

That discomforting bitterness might be the aftertaste of a book about the special counsel and the independent counsel is hardly Coan’s fault. Discomfort is carried on the wind and the Twitter feed these days, the therapists report, by the diffuse and unpredictable miasma of the Trump presidency. It is a symptom of our “motiveless malignancy”—Samuel Taylor Coleridge’s phrase—that one predicts its course or consequences at one’s peril.

One of the virtues of Coan’s book is its valiant attempt to provide both historical context and legal structure for thinking about how a president’s alleged criminality, and more general malignancy, can be corralled within a constitutional system supposedly characterized by the rule of law. By focusing on the role of special prosecutors from the St. Louis Whiskey Ring of the 1870s, and the Teapot Dome scandal of the early 1920s, Coan demonstrates that apex criminality was a recurrent theme in American political history long before Watergate. By considering closely the questions of whether, and upon what grounds, a president can be subject to criminal prosecution, Coan does an admirable public service in setting out clearly and without jaundice a context for evaluating the various pathways any ensuing quest for ‘accountability’ can take.  

I will not focus here on the consequential legal questions that Coan seeks to clarify—for instance, can the president be prosecuted while in office? Can s/he commit obstruction of justice? Or be subpoenaed? Predicting answers to these puzzles is difficult not simply because of uncertainty in the law, which Coan candidly recognizes, but also by a recent unsettling of what ordinarily would be taken as the fixed coordinates of the law. Consider Morrison v. Olsen, for example, which upheld the independent counsel statute. Despite the fact that the Morrison decision was 8-1, certain Senators have of late taken to speaking of Morrison as though it were obviously bad law, not just a valid rule with which they disagree. The law in this domain, such statements might suggest, is permeable to concerted action by political elites. In a context in which there is concerted action to destabilize both factual understandings and settled legal rules, the usual rules of legal prognostication no longer apply. 

Instead of scoring answers, I want to focus on the discomfort that arises from recognizing what Coan calls the “double-edged relationship between politics and the rule of law.” [20] That is, I think, the most important puzzle raised by Coan’s book (one splendidly captured in Fried’s bon mot, with which I began).

The discomfort arises as follows: As I have argued in a recent law-review article, removal of a president by impeachment or prosecution functions as a close substitute for voting him or her out of office—which is the sine qua non of electoral politics.  As a result, removal by legal means inevitably comes encumbered with the political aspirations and fears of a president’s supporters and opponents alike. So it is quite implausible to expect that the process could be wholly legalistic in character. At the same time, I suggested, it is hard to imagine that these tools can be boiled down solely to politics: The resort to presidential prosecution, like impeachment, can be justified only by asserting that there is a legal, rather than merely a political, flaw in an incumbent’s claim to authority. As a result, I concluded that Fried was correct to think that the removal of high-level officials cannot be accomplished “without politics.” What Fried didn’t say, but what it is important to add, is that it also cannot be achieved “without law.” Non-electoral removal of the president is necessarily an amalgam, and probably an unstable amalgam, of law and politics.

The difficult question, then, is how formal rules and the fluid dynamics of partisan contestation will interact at a given moment to yield specific forms of accountability. As I observed above, one characteristic of our moment is partisan mobilization outside the courts to delegitimate, and hence change, stable background legal rules. This is but a taste of what is at stake. Although Coan rightly focuses our attention on this question, and rightly flags its “double-sided” character, I think he can be gently criticized for focusing on one vector of influence to the exclusion of others, in ways that give short shrift to the unstable law/politics dynamic of our moment.

The repeated refrain of the book is that the efficacy of legal instruments for holding a president accountable depends “on the vigilance of the American people.” [178] Hence, in his discussion of Watergate, that epitome of presidential criminality, Coan says that Nixon would not have been held accountable “without the support of the American people,” and in particular “the tens of millions of Nixon voters who put aside partisanship when the evidence showed that the president was a crook.” [203] The implicit model here is one in which the ‘law’ goes thus far, and only so far, leaving in some ‘ultimate’ sense the operation of accountability devices to depend causally on “the American people.” [211].

I think that description is fine so far as it goes. Indeed, I enjoy Franklin’s chestnut about “a constitution if you can keep it” as much as the next lily-livered legal liberal (and indeed have used it not once, but twice, in books). The problem is that this line of thought doesn’t go far enough.

A blog post is not the place to offer a full-blow theory of the complexity of the law/politics dynamic in the context of removing presidents. Instead, I will offer three examples of complexity within this relationship that might thwart the kind of simple supplementing logic upon which Coan relies. All three provide reasons for thinking that even if it is important for legal ‘elites’ such as Coan and myself to make appeals for popular commitment and recommitment to the rule of law, there is also reason to think that matters are rather more complex.    

Begin with the example of badmouthing Morrison v. Olsen, which I mentioned earlier. The Senators who engage in this sort of strategic rhetoric do so, presumably, because they believe that such jawboning is effective. They are, in a sense, ‘working the ref’ by seeking to change the point at which the law seems to run out. If such efforts are successful, popular influence is contingent on elite capability to shape perceptions of the legal landscape, so that members of the public believe that different actions either are or are not within the bounds of the legally permissible.

A second point concerns the way in which “the American people” obtain information. Coan’s approach assumes a certain amount of stability over time. But a 2017 study by Yochai Benkler, Robert Faris, Hal Roberts, and Ethan Zuckerman (recently expanded into book form) suggests that the structure of the information ecosystem that channels information to “the American people” has changed in the last three years. Benkler and colleagues analyzed hyperlinking patterns, social media sharing patterns on Facebook and Twitter, and topic and language patterns to understand how the media environment is changing.  Ultimately, they demonstrated that “a right-wing media network anchored around Breitbart developed as a distinct and insulated media system,” and this “not only successfully set the agenda for the conservative media sphere, but also strongly influenced the broader media agenda, in particular coverage of Hillary Clinton.” This new propaganda network, and the influence it has over the news-cycle, provides a prophylactic for a political leader who fears a public demand for accountability. It makes obfuscation and distraction much easier.

A final point raises the question whether such obfuscation is even necessary. Recent work by the sociologists Oliver Hahl, Minjae Kim, and Ezra Zuckerman Silva explores the much-remarked upon, but little understood, dynamic whereby a political leader can repeatedly lie on banal and important matters alike, and yet retain the retain the trust, and shape the beliefs, of a substantial fraction of the electorate. Hahl and colleagues find that the “lying demagogue” (their phrase, not mine) can maintain popularity, and even an air of authenticity among parts of the population that view the political system as illegitimate or corrupt. Paradoxically, they show, perceptions of corruption need not and do not yield a demand for moral clarity. In practice, the contrary seems to occur. Their finding has an especially disquieting quality at a moment of cratering levels of trust in the federal government. It suggests that establishing public consensus about the criminality of a “lying demagogue” won’t be possible through merely moral suasion by Coan or me.

I am not sure, in light of these trends, whether it is enough anymore to invoke “the American people” as a unitary creature imbued with a Capra-esque nose for dishonesty (if it ever was, indeed, plausible to imagine such a beast). The challenge for democracy, these trends strongly suggest, adheres in more than the White House, and meeting it will require a broader analytic lens than merely the constitutional law of presidential indictment.  Coan’s important book should thus be an opening bid, rather than the final word, in an important diagnostic conversation. 

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