Published 7:19 AM EDT Sep 27, 2018
Klaxons sounded across the nation — or at least the nation's capital — when it seemed that Deputy Attorney General Rod Rosenstein, the man charged with supervising special counsel Robert Mueller's Russia investigation, was about to resign or be fired by President Donald Trump. With Rosenstein gone,Trump would be in a better position to put his own man in charge of an inquiry that has been zeroing in on him, his family and his associates. Critical facts about his campaign’s possible collusion with the Russians and his possible obstruction of justice might never come out.
That has been temporarily averted. Rosenstein survived until at least Thursday and could last through the midterm elections. "My preference would be to keep him and let him finish up," Trump said Wednesday.
If and when Rosenstein is dispatched, and Attorney General Jeff Sessions in all likelihood pushed out the door with him, how bad will such bad news be?
Threats to Mueller and democracy
Matthew Whitaker is not yet a household name. But Whitaker, who serves as Sessions’ chief of staff, is reported to be a strong candidate to replace Rosenstein. And Whitaker has already warned Mueller in an op-ed that any digging into Trump’s personal finances would be a “red line” that he should cross only at his peril.
“It does not take a lawyer or even a former federal prosecutor like myself,” wrote Whitaker, “to conclude that investigating Donald Trump's finances or his family's finances falls completely outside of the realm of his 2016 campaign and allegations that the campaign coordinated with the Russian government or anyone else.”
But it does not take a lawyer or even a former federal prosecutor to see that this is pernicious nonsense. A wealth of evidence has already surfaced suggesting that Trump’s family finances are deeply entangled with the Russian government. Ignoring these links, when they might explain the motivation for much of Trump’s behavior in the campaign and as president, would be a travesty.
Of course, even if Mueller’s probe is shut down or rendered toothless, parallel investigations are taking place in other jurisdictions, including New York and Virginia. Though the Supreme Court has never ruled on the question, a president probably cannot be indicted while still in office. Yet there remains the possibility that prosecutors in New York or Virginia might file a sealed indictment, to be opened when Trump’s presidency comes to an end.
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Trump has plainly been worrying about that very possibility. “I have the absolute right to pardon myself,” he has written in a tweet.
But a self-pardon would place the president above the law, allowing him to commit any crime that a Republican minority in the Senate would countenance. After all, two-thirds of the Senate is needed to evict the president from the White House in an impeachment trial. No matter how well the Democrats perform in the midterms, they are not going to control the necessary 67 votes to rid us of this troublesome president.
Trump says “numerous legal scholars” agree with him about his power to print a get-out-of-jail-for-free card in the form of a self-pardon. That is false. Few scholars do. But some Vichy Republicans have stepped forward in timely fashion to make the case.
“It is obvious that the Framers understood they were permitting the president to pardon himself,” says former federal prosecutor and Fox News contributor Andrew McCarthy.
If democracy dies, it won't be by coup d'etat
In the Nixon era, the Office of Legal Counsel in the Justice Department opened a three-page memo with the categorical assertion that “under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”
Contrary to Trump loyalists who glide over all ambiguities and counterarguments as they manufacture propaganda, at the very least the question is debatable. When push comes to shove, however, Trump without doubt will be citing the likes of McCarthy.
The death of the two-centuries-plus American experiment in self-governance, if it comes, will more likely be in the form of a steadily growing malignancy than an abrupt cardiac arrest. We are not going to witness a coup d’etat, with renegade forces seizing TV stations and pivotal institutions as in the brilliant film "Seven Days in May." Rather, key elements of our system will be hollowed out and then give way, one by one.
If the president succeeded in terminating an investigation of his own criminality, malignancy would have claimed a key organ of the democratic body politic. Trump would effectively cease being a president and start being a kind of term-limited king. It would be the beginning of the end of the rule of law. The panic in Washington this week over Rosenstein’s imminent demise was amply justified. The life of our democracy is on the line.
Gabriel Schoenfeld, a member of USA TODAY’s Board of Contributors and the author of "Necessary Secrets: National Security, the Media, and the Rule of Law," was a senior adviser to the 2012 Romney for President campaign. Follow him on Twitter: @gabeschoenfeld