“Ambition must be made to counteract ambition.” – Federalist No. 51.
Robert Mueller did not indict President Donald Trump for obstruction of justice, nor could he have even if there were evidence of a crime. This is due to the very design of the Constitution. Moreover it’s dishonest for legal scholars to claim it’s “undemocratic” that a sitting President can’t be indicted.
The Structure of the Constitution and Separation of Powers.
The Constitution vests powers into three separate but co-equal branches of government – Legislative, Executive, and Judicial. The powers of the respective branches of government are enumerated in Articles I, II, and III in the Constitution itself.
Article 2 of the Constitution lists the powers of the Executive branch, and reads, “The executive Power shall be vested in a President of the United States of America.”
The power to prosecute is an executive power. That’s why the President appoints federal prosecutors in each district.
To understand the role of separated powers plays, think of it like this: Congress writes the laws that define crimes, which the President signs. The Executive branch enforces those laws. And the Judiciary interprets them.
If you’re pulled over with a brick of marijuana in your car, you’ll be prosecuted by the Department of Justice (Executive) because transporting marijuana is a crime (as defined in the United States Code, the body of laws written by the Legislative branch). A judge will determine whether the law is constitutional or if your rights were already violated.
“But it’s undemocratic that Trump can’t be indicted,” you might say.
Trump is an elected official. Mueller was not elected. How would it be democratic for an unelected official to disrupt the ability of the highest elected official to govern?
The obstruction of justice paradox.
The power to prosecute resides within the Presidency. How then could you obstruct your own investigation?
Imagine Hillary Clinton had been elected POTUS. A US Attorney in Iowa, looking to make a name for herself, decides to indict Clinton for various crimes.
Would that be democratic?
If President Clinton had fired the US Attorney, would that be obstruction? Why? The power gives President Clinton that power.
The democratic remedy against Trump is impeachment.
Article 1 of the Constitution provides:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Democratic officials (Article I) have the power to remove a democratically-elected official (Article II).
The system is functioning exactly as it should be.
By the way, to get a sense for what the United States has lost, and to understand how far into the gutter so-called legal scholars have dragged us, read the full excerpt from Federalist No. 51.
The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Could you imagine such insights coming from any modern legal commentator or observer?
P.S. If you enjoyed this article, listen to the full podcast about Trump and Mueller here.