//  1/17/19  //  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).

Andy Coan has written a terrific new book on the history of special counsels and the great questions facing them.  Its crisp prose sings.  Members of the press, legal mandarins, and politicos will find it a delightfully readable instruction manual on special counsels.  Think Watergate: how did the lawyers deal with the question, “Can the President be indicted”?  Now,  read Coan’s book, Prosecuting the President. 

Academics may quibble that the book is neither historically comprehensive nor exhaustive on difficult legal questions such as obstruction of justice.  But the book’s intended audience is larger than the academic cognoscenti.  The point is to put the principal questions facing the special counsel in much-needed historical context for the average reader.   In this sense, this book is reminiscent of the small volume on impeachment originally written by Charles Black and recently republished by Philip Bobbitt.  Other books dig deeper (see Joshua Matz and Larry Tribe’s recent work on the same subject).  But the sheer joy of reading Coan’s small volume does wonders for those weary of academic pontification, in a world full of urgent problems.

Prosecuting the President begins with a puzzle.  Why is it that Presidents have appointed special counsels, even if they are not compelled to do so?  Why do Presidents tolerate them, even if they could fire them?  The answer is important, not simply because of current events.  The answer is important because it reflects something too often overlooked about our government, constitutional restraint, and the separation of powers.   Majoritarian politics can be restraining.  Yes, I said politics can be restraining.  

In the post-1970 bell-bottom world of academic constitutional law, there reigns a persistent binary: politics is bad and law is good.   The political branches are not to be trusted but the Supreme Court is.  This mythology is taught in constitutional law classrooms across the nation.  But it rests on a set of false premises.  First, the Court can be terribly bad.  Think Dred Scott, which prompted a horrific civil war.  Think how, over the course of half a century, the Court disempowered state and federal legislatures from controlling basic working men’s rights or banning child labor. Think about the century in which over half the population—women—did not receive even a nod from the Court about their right to equal protection of the law.  Ronald Dworkin and Earl Warren may have bamboozled folks into the thinking of the Supreme Court as a rights-protecting hero—but over the long, long term, history suggests that the Court has been a complacent co-conspirator in perpetuating what we now see as grave social inequities.

A corollary follows: If courts can be blind, politics can produce good.  Known by a different name, politics is democracy.  Self-government is powerful.  Remember the 1964 Civil Rights Act?   Without it, I would not be writing this post.  Pick your favorite agency.  The Supreme Court did not create it.  Or think about the last financial crisis.  The Supreme Court did nothing.  Congress had to pass a raft of laws to steady the markets and rescue the economy.  I have no illusions about politics, since I have found myself in that world on occasion.  But I do know that it is too simple to say that politics cannot, on occasion and fitfully, and typically only in highly salient cases, check abuses of power.  To misquote Brandeis, the great disinfectant of democracy is the “court of public opinion.”

Why do Presidents name special counsels?  The political scientist David Mayhew dubbed  it the “electoral connection.”  As Coan explains, Presidents name special counsels because the public demands an inquiry.  This is not the politics of parties or tribes or algorithms.  It is the politics of elections and votes and reputations.  Donald Trump has enough money to buy another election.  He has a party supine to his insults and tweets.  But if the President wants to be reelected, if he wants to maintain party loyalty, and if he wants to be remembered with any fondness, he has to worry that the public will come to judge him, like Nixon, a crook, or perhaps worse, a traitor.  What drove Nixon out of office was not the specter of indictment or impeachment.  It was the “court of public opinion.”  Once the tapes were revealed, Nixon had to fear that no one would remember anything but his voice on those tapes: crude, swearing, and power-hungry.

Coan’s book helps us to see why an arrangement that, on the surface, appears to put the fox in charge of the henhouse might be superior to the old Independent Counsel statute.  As I said earlier, Presidents appoint special counsels to inoculate themselves:  “How could I have done this, if I am willing to investigate myself?”  Presidents do not name special counsels in minor affairs.  Only transgressions salient to the public, ones that the President believes have a serious electoral or reputational cost, yield such an appointment.  In this sense, the current scheme differs rather dramatically from the now-dead Independent Counsel law.  That law allowed a vast array of special counsel appointments for seemingly low-level transgressions, prompted by congressional whim.  It risked criminalizing Congress’s political enemies for minor offenses (a very bad idea).  Presidential politics naturally selects the most important cases—the salient ones that the “court of public opinion” cares about.  Under the current scheme, Presidential need and control have the paradoxical effect of restraining the scope of prosecutorial power, even if they cause grave headaches for special prosecutors, who must constantly ask whether they will be fired tomorrow.

If I am to quibble with Coan’s book, it is that he appears at points to be as invested as the press in the prospect of a criminal indictment of the current President.  The Mueller investigation is more important than a criminal indictment.  It will help determine whether Americans believe that a Presidential election was stolen by the Russians.   It matters far less whether Trump knew this or whether he was a dupe of well-known Russian disinformation tactics.  If history judges him traitorous, his name and his brand will be forever tarnished.  In this sense, all the hemming and hawing about whether a President can be indicted and whether he has committed obstruction of justice are beside the point.  The “court of public opinion,” to whom Coan appeals over and over again, is less likely to be influenced by the niceties of the criminal law on obstruction than by an unequivocal demonstration that the President was beholden to a foreign power. 

Special Counsel Mueller should heed the call of the “court of public opinion.”  The Counsel should avoid legal weeds—whether in his report or his indictments. This was the grave error of the Iran-Contra special prosecutor, Lawrence Walsh.  The case dragged on, and no one understood what was at stake, even though the basic offense could have been described quite simply.  (Confession:  as a baby lawyer, I worked on the Senate investigation). In short, Oliver North was alleged to have stolen a missile and conspired with various arms dealers, pocketing profits in a Swiss bank account under a code name “Mrs. Bellybutton” (for his wife).  If true, that was theft, pure and simple.  But this narrative was lost in a host of legal questions about Congress’s grant of immunity, the Boland Amendment, and the wisdom of a foreign policy built by a few staffers inside the White House. 

If Mueller’s appointment is based on the “court of public opinion,” as Coan argues, he must answer that court.  The gravamen of the current President’s public offense is not legal obstruction; instead, the gravamen of the offense is American betrayal.  You do not have to believe me, just remember Judge Sullivan at General Flynn’s sentencing, who refused to hide his disgust that Flynn had “sold out” his nation. 


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