In Defense of Presidential Purges

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U.S. President Donald Trump and Attorney General William Barr April 1, 2020. (Photo by Win McNamee/Getty Images)

The separation of governmental powers established by the U.S. Constitution is a central pillar of our liberty. And it is widely perceived that the executive branch has, over the decades, aggrandized its power vis-a-vis the legislative branch, particularly in the realm of foreign affairs and warmaking. That gets substantial attention in the country’s political discourse, as it should. Executive power, unchecked, constitutes an inherent danger to liberty. 

But there is an area where executive prerogative should be inviolable, and that is in the president’s ability to maintain dominance over his own house, to run the executive departments and agencies of the government, within the context of the Constitution, accountable primarily to voters at election time and not to members of Congress or other political forces. This includes the president’s power to hire executive branch employees (though of course, in cases involving high-level officials, with the “advice and consent” of the Senate) and to fire his employees as the president sees fit. 

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This element of power separation has come under attack during the Trump administration to a greater extent than the nation has seen since the presidency of Andrew Johnson, when Congress passed an intrusive law barring the president from firing his own employees and then impeached him when he shunned that congressional dictate. Decades later, in an unrelated case affirming the president’s exclusive power to remove staff whose duties are an extension of presidential authority, the Supreme Court cited specifically the Johnson-era Tenure of Office Act as unconstitutional. 

But under President Trump we have seen a surge in the view that, for example, the U.S. attorney general doesn’t actually work for the president but for the American people. Often this is expressed as a solemn principle of the country’s constitutional system. But in reality it wasn’t until the Watergate crisis of the 1970s that anyone ever challenged the president’s sway over his attorney general. A leading constitutional scholar of that time, Yale’s Alexander Bickel, argued that Richard Nixon, under intense pressure as a suspected presidential miscreant, had the right to fire his attorney general for any reason or no reason. By extension, under Bickel’s reasoning, he also could fire the special prosecutor appointed to investigate his own actions. Bickel believed that neither the legislative branch nor the judicial branch had any say in the matter. 

But, as it turned out, the American people did. Shortly after Bickel put forth his learned opinion, Nixon brazenly embraced that view and ordered his attorney general, Elliot Richardson, to fire the special prosecutor, Archibald Cox. Richardson refused. Then his deputy, William Ruckelshaus, also refused. Ultimately, the president had his way, but it unleashed a firestorm that swept across the nation. Nixon’s political standing collapsed, and he never recovered. It was the beginning of the end of his presidency. 

One could argue that this was a happy outcome because the president’s right to hire and fire subordinates remained intact while the political price he paid in exercising that right turned out to be self-destruction. Unfortunately, though, the episode brought forth the faulty idea that the attorney general doesn’t really work for the president but, contrary to constitutional language and logic, for the country at large. 

Today that view is widespread and powerful. House Speaker Nancy Pelosi put it starkly when, referring to Trump’s AG William Barr, she declared, “He is the attorney general of the United States of America, not the attorney general of Donald Trump.” And Hawaii Senator Mazie Hirono confronted Barr at a congressional hearing with what seemed to strike many as a devastating accusation. “You’ve chosen to be the president’s lawyer,” she pronounced.

The problem here is that if the attorney general is beholden strictly to the American people, it opens the way for Congress, claiming to speak for the American people, to gain added leverage over the executive branch. That breaches the power separation envisioned in the Constitution. 

Or consider the doctrine, so avidly embraced by Trump opponents in Congress and the political arena, that Trump was guilty of obstruction of justice when he fired FBI Director James Comey early in his presidency or sought to bring about the firing of special counsel Robert Mueller, who was investigating allegations of collusion between the Trump campaign and Russia.

There is no doubt that presidents are not immune from the law when they commit bad acts unrelated to their official duties. Indeed, as William Barr noted in a memo written before he became AG, both Nixon and Bill Clinton sought to obstruct justice in ways that brought both presidents under the spotlight of House impeachment proceedings–and appropriately so. Barr added that enforcing such laws against a president doesn’t infringe on that president’s “plenary power over law enforcement” because the exercise of this discretion, ”such as his complete authority to start or stop a law enforcement proceeding,” doesn’t involve the commission of any actions that fall under a strict definition of obstruction. 

Barr has taken a lot of heat for this distinction between presidential actions unrelated to executive authority, which can be unlawful, and declaring presidential actions that clearly fall under executive prerogative to be unlawful. But it represents a sincere effort to parse a complex area of constitutional law involving the imperatives of legal accountability and the importance of the president’s constitutional standing in our delicately balanced governmental system. 

The issue of a president’s constitutional prerogative in executive-branch personnel matters was raised in some intriguing though indirect ways in a recent New York Times “News Analysis” by Peter Baker, which catalogued Trump’s recent actions apparently designed to purge his administration of people he didn’t trust or didn’t like or who had run afoul of him during his recent impeachment ordeal. It was a solid piece of reporting, and there’s certainly nothing wrong with journalists pursuing inside information on how a president conducts himself within his own executive domain.

There is a problem of tone, however, and an unmistakable one-sidedness. Baker never notes or even hints at the president’s inherent executive power to hire and fire at will, thus seeming to give the president’s actions his own severe stamp of opprobrium. He does note that government inspectors general (one of whom was fired by Trump) are “appointed by the president and confirmed by the Senate” but adds that they are “traditionally granted a great deal of independence” to ferret out mismanagement or misbehavior in government. True, but such traditions don’t supersede presidential prerogative under the Constitution, a reality that goes unmentioned. 

Further, the reporter clearly wants his readers to see the president’s actions as just another reflection of a ham-handed president out of control and consumed with vindictiveness. He employs such value-charged words and phrases as “purge,” “retribution,” “under-cover-of-darkness,” and a “hunt for informers and turncoats.” He makes much of all this being carried on in a time of the coronavirus challenge–”the latest instance of the president continuing to pursue his personal and policy agenda while the nation has been consumed by the pandemic.” 

Well, it’s a Times “news analysis,” so all this may be fair game. But, just for the fun of it, let’s look at it in a different way, with the idea of bringing some perspective to the thing. 

We have a president (uncouth, unruly, and unseemly, yes, but that’s not relevant here) who, upon getting elected, discovers he’s under investigation by federal officials on suspicion of treasonous collusion with Russia. He knows it’s not true, and soon we all learn that the investigation was launched on the basis of an outlandish dossier commissioned by the Democratic Party and Trump’s presidential opponent–and that authorization from a secret court for surveillance on campaign personnel was granted on the basis of faulty (and probably manipulated) evidence.  The president tries to get a handle on the situation, in part by firing FBI Director Comey, but that only serves to instigate the naming of a special counsel, Mueller, who promptly expands the definition of obstruction of justice to include actions that traditionally had been considered acts of presidential prerogative. Practically from day one, the president finds himself backed up against a wall.

He’s essentially cleared of collusion, but the Mueller team employs artful language to hang the obstruction allegation around his neck, thus throwing raw meat to the braying bloodhounds who remain in pursuit. The obstruction tag fades, but soon he is under siege from an impeachment initiative in the House. It’s based on actions of the president in seeking to get Ukraine to investigate Democratic presidential aspirant Joe Biden and his son, Hunter, who cadged huge amounts of money for doing essentially nothing for a corrupt Ukrainian energy company. 

It was a stupid and unsavory action on the president’s part, but the American people, as a collective, reject the idea of tossing a president out of office on the basis of such a transgression, and we end up with what is essentially a partisan House impeachment and Senate trial that don’t destroy the Trump presidency but succeed in wounding him politically. So he continues to be under immense political pressure from his intractable political enemies–and then comes the threatening scourge of coronavirus. 

The president can see that his beleaguered state can be traced in large measure to his campaign pledge to improve U.S. relations with Russia. “Wouldn’t it be great if we could get along with Russia?” he said repeatedly on the campaign trail, thus stirring undying enmity of the American foreign policy establishment, which operates on an article of faith that Russia represents the country’s greatest threat. Of course the Russia probe destroys his ability to fulfill his campaign promise of improving U.S.-Russia ties, and the impeachment ordeal reveals just how widespread is the anti-Russian sentiment within his own administration, as various officials of various levels of stature trek up to Capitol Hill to testify as to the nefarious nature of the president’s actions with Ukraine, based upon the nefarious nature of Russia. The result: the president’s range of action with regard to Russia is totally wrenched from his purview. 

Now put yourself in the position of the president whose experiences match those described above. What kind of idiot would run the executive branch, in these circumstances, in a politics-as-usual manner? What kind of president, facing the slings and arrows of Democratic opposition on one side and the uncertain specter of an out-of-control pandemic on the other, would keep in place within his administration men and women who clearly aren’t loyal to him and who had assisted in the effort to destroy his presidency?  

Any president must protect his presidency if he is to govern the country in a way that generates political support in the moment and wins history’s approval in the future. Thus do we see that the Trump actions described by Peter Baker in his prejudicial way ultimately constituted a dog-bites-man story. It’s still a good story. But, in his zeal to get his hot branding iron up against Trump’s flank, Baker missed the full scope of the narrative. 

Robert W. Merry, longtime Washington, D.C., journalist and publishing executive, is the author most recently of President McKinley: Architect of the American Century (Simon & Schuster). 

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