What Would William Howard Taft Do About Robert Mueller?

|The Volokh Conspiracy |

In light of the FBI's search of Michael Cohen's office, as well as reports that President Trump considered firing Robert Mueller in December and June, the Senate Judiciary Committee will vote next week on a bi-partisan bill that would allow Special Prosecutors to appeal their firing to a panel of judges. The President, Congress, and the Special Prosecutor, of course, are now asking this question: What Would William Howard Taft Do?

As it happens, Taft's presidency was nearly undone by his rash decision to fire Gifford Pinchot, a moralistic whistleblower and aide to Theodore Roosevelt who served as the head of the U.S. Forrest Service. Pinchot alleged that Taft's Secretary of the Interior, Richard A. Ballinger, had corruptly sold lands to a mining syndicate controlled by J.P. Morgan, a contributor to Taft's campaign, rather than preserving them for environmental conservation.

Convinced that Ballinger was innocent, Taft fired Pinchot because of his prickly demands for personal loyalty among his closest aides, and his tendency to become enraged when they criticized him. Taft then made matters worse by backdating the document he issued to justify the firing—a deception uncovered by the crusading investigator Louis Brandeis. As usual, in Washington, the cover up was worse than the crime. The firing led to the historic breach between Taft and Roosevelt, splitting the Republican party and guaranteeing Woodrow Wilson's election in 1912.

If President Taft shows the political dangers of impetuously firing aides on the grounds of disloyalty and then lying about the paper trail, Chief Justice Taft reiterated that the president has the constitutional authority to fire any officer he appoints. In the Myers case, Taft held that the need for "unity and coordination" in executive action gave the president the power to fire any executive officer he had appointed without being constrained by Congress. "The natural meaning of the term 'executive power' granted the President included the appointment and removal of executive subordinates," Taft wrote.

In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it….The moment that he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action.

As Christopher Yoo, Steve Calabresi, and Anthony J. Colangelo note in "The Unitary Executive and the Modern Era," "Once power was delegated to the Chief Executive, Taft believed that "the president should be given broad and plenary control over those powers." They emphasize that Taft fired Gifford Pinchot in part because of his belief in the importance of unifying presidential control over the executive branch.

What would Taft say about the proposals in Congress to limit the president's power to fire the special prosecutor? There are decent arguments for and against the constitutionality of the bills—the constitutional skeptics harken back to Taft's opinion in Myers and to Justice Scalia's dissent in Morrison v. Olson, the 1988 case upholding the now lapsed independent counsel law; those supporting the constitutionality of the bill emphasize the 8-1 Morrison majority opinion. But the Roberts Court is more Taftian than the Rehnquist Court. For that reason, any Senators drafting bills to restrain the president's ability to fire Robert Muller should read Myers carefully—and be guided by the actions not of President Taft but of Chief Justice Taft.

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  1. Why could not Congress appoint its own special prosecutors, if they want a prosecutor who does not answer to the President?

    Why could not BLAG act as a special prosecutor?

    1. Prosecution by definition is an executive function. When someone is prosecuted criminally in the federal system, the criminal charge is brought by the United States — that is how the cases are captioned. Who represents the United States? The Executive branch, specifically the DOJ.

      Congress could set up a Special Investigator, who would be charged with investigating something (a suspected crime) and reporting back to Congress what he or she found. Congress might then decide to impeach someone, or refer the matter to the DOJ for prosecution.

      1. “Congress could set up a Special Investigator, who would be charged with investigating something (a suspected crime) and reporting back to Congress what he or she found.”

        Such an investigator would be severely limited in their ability to obtain evidence from uncooperative sources.

    2. Because BLAG as special prosecutor acting under the direct control of Congress would be limited to subpoenas.

      They wouldn’t be able to use the FBI as investigators, or obtain search warrants, or execute a warrant by force against a refusal to co operate. In short, BLAG has no law enforcement powers.

  2. Check out the latest swamp creature to emerge, this one being responsible for the Cohen raid. The swamp is deep!

    “When the media first began to spin the raid on the president’s lawyer, they claimed that it had been approved by a Trump appointee. Of course it hadn’t. It came from Rosenstein on one end. And Trump’s appointee had recused himself. That left his deputy, an Obama holdover.

    Robert Khuzami. . . And he has quite the stunning history . . .”

    Have a look at the details on this despicable swamp creature’s behavior at the SEC:

    https://bit.ly/2HgXkvD

    “Year One should have seen a crackdown on the corruption of the Obama era. It’s still not too late.

    The bottom line is that the Trump administration will either aggressively push back by declassifying, exposing and prosecuting misconduct from the Obama years. Or it will be targeted by increasingly aggressive measures orchestrated by the very people it should have been going after.”

    1. Pretty much, and that’s the thing about Sessions that bugs me the most. I had really hoped that Trump’s administration would spell the end to this corrupt tradition, (Begun by Ford.) of each administration holding the previous administration harmless for any crimes it may have committed.

      But Sessions apparently had no taste for going after past administrations’ crimes.

      1. Or there were no crimes to begin with.

        Prosecuting past administrations is third world crap, Brett. Think for a moment beyond your immediate partisan needs to the long term effect of such a policy.

        1. The problem is, they are still there doing what they’ve been doing, and working over time to undermine Trump. Letting bygones be bygones sounds nice in theory, but unfortunately there’s no such option because they’re not gone.

          1. You want to put people on trial for ‘undermining the President?!’

            1. I think he wants to fire them. And if they acted criminally, which it looks like, then arrest and charge them.

        2. How soon we forget about Hillary’s classified emails on her private server.

          1. Just because you believe something very strongly doesn’t make it true.

            1. So are you saying that Hillary didn’t have classified emails on her private server, or that you think that it wasn’t a crime to do so?

              1. I’m saying I believe Comey over you.

                1. According to Comey, there is a difference between “grossly negligent” [crime] and “extremely careless” [not crime].

                  “belief” is the correct standard because accepting Comey’s word on the e-mails is a matter of faith

                2. “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

                  ? Jonathan Swift

                  1. Accepting anyone’s word is a matter of faith, Bob. How can you believe anything you haven’t personally witnessed? Your choice of who not to trust seems a bit outcome oriented.
                    And what about the Trump admin’s security fails? In vetting, in blurting out (former) secrets, in it’s own server problems.

                    Whatever. I need to stop rising to the bait every time someone answers the Trump Admin’s spiraling legal jeopardy with ‘Why can’t we talk more about how I think Hillary’s super guilty of things!’

                    1. Do you think the application of the law and handling of the cases by the FBI has been consistent between the Clinton case and the Trump case?

                    2. Not remotely.

                      The FBI investigations into Trump and potential collusion between his campaign and Russia have been remarkably leak free, both during the election and now, and official statements have been minimal.

                      By contrast, the FBI investigation into Clinton’s emails was extremely public, very leaky, and included and extremely ill-advised announcement a week before the election.

                      For the most part I think this was circumstance more than bias on the FBI’s part. But I think it’s overwhelmingly true that Trump has gotten far more favourable treatment from the FBI than Clinton. Despite the incessant whining that comes from Trump as investigators follow a very legitimate trail of evidence that leads straight into his finances.

                    3. How many immunity deals were offered to Trump people vs Clinton people? How many raids did the FBI conduct against Clinton people? How many Clinton people were charged with process crimes?

                      Any? Where Trump people allowed to destroy evidence or violate subpoena orders?

                    4. I don’t get this narrative. You give immunity to get someone to talk. The fact the only legal outcome was the immunity deal shows they had so little evidence that their only hope would be that Pagliano would tell them that someone specifically instructed him to delete the emails after the preservation order.

                      They may have gotten a harsher penalty for him but I think it was subdued by the fact his motive was more covering up his professional screw-up more than covering up evidence.

                      With Trump we know at least one person got partial immunity, and a whole bunch of others have flipped after taking deals.

                      The FBI has gone a bit harder after the Trump folks because a lot of them were actively trying to mislead investigators. Though the ones who cooperated early have gotten pretty nice deals.

                    5. “The FBI investigations into Trump and potential collusion between his campaign and Russia have been remarkably leak free . . . Trump has gotten far more favourable treatment”

                      Thanks for the laugh!

                      This investigation has been leaking like a sieve since months before the election, when the deep state first hatched this plan to peddle a crackpot conspiracy theory to justify spying on political opponents. Starting with the leaker in chief and liar Comey. Almost every week there is a new “revelation” according to anonymous “sources” and usually multiple per week.

                      If Trump was getting the Clinton treatment, then instead of raiding Cohen’s office, they would have sent a subpoena, and then waited patiently while the respondents carefully destroyed whatever they wanted, bleached the hard drives, and smashed the phones with hammers. No objection would be raised to this, and they wouldn’t even ask to see the hard drives or other electronics. This is just the tip of the iceberg in the wildly unequal treatment in Clinton’s favor.

                    6. The “leaks” have either been:

                      1) Reporters speculating based on things like indictments and what they can derive from the members of the team.
                      2) Reporters reporting on their own (or other parties) investigations in to Trump.
                      3) Targets of the investigation who’ve been interviewed and started talking about it.

                      I’m not sure I’ve seen any leak come from Mueller’s team, and Steele, the one person who did talk to the press (who was an independent investigator and not a member of the FBI) got fired for talking to the press.

                      And as I’m sure you’ve noticed there have been various subpoenoas and preservation orders issued to Trump and his associates. Meaning they too would have plenty of time to destroy documents if they wished.

                    7. The assertion, which we see mindlessly repeated by some members of the mainstream media ad nauseam, that Team Mueller has been “remarkably leak free” is simply baseless and wholly unsupported. It could be largely true, or it could not be. What’s clear is that we have wave upon wave of “reports” and unnamed “persons familiar with the matter” that could be anyone.

                      You raise a good point that I’ve been wondering about, actually. Should Cohen and Trump have been smart enough to anticipate such a raid and ensure there aren’t all kinds of damaging things lying around for investigators to find? I think so — as as surprising as these anti-Trumpers’ brazen zealotry may seem, it shouldn’t really be surprising.

                    8. Maybe Mueller is carefully leaking stuff that looks exactly like people saying what he asked them, or maybe people are going to the media and reporting what Mueller asked them.
                      Which isn’t even a leak, BTW. And has sometimes even been attributed to people Mueller has spoken to.

                      But how can we possibly know? Better assume Mueller is a bad guy!

          2. Forget? It is your sword and shield.

        3. “Think for a moment beyond your immediate partisan needs to the long term effect of such a policy.”

          Now officials of former administrations get to prosecute current administrations. Is that better?

          1. When the officials are appointed by the current administration, the guilt by association doesn’t really wash.

            1. Mueller was appointed by a renegade official, not the “current administration”.

              1. Who could forget the renegade official exception!

          2. Well it’s only bad now that Trump’s in office, apparently.

        4. The idea that there were no crimes is a sad joke. Just based on public information you can easily identify multiple crimes. Some of which Comey dishonestly attributed a mens rea requirement to, others he simply avoided any mention of.

          Unless you engage in circular, “Nobody got prosecuted, so there were no crimes.” logic.

          FAILING to prosecute past administrations is worse. It’s what leads you to that third world crap, where whoever is in power is above the law.

          1. Yeah, but you can also deduce that Clinton was ordering trafficked children via a pizza parlour, so we’re not impressed with the deductive powers of the right.

            If you’re worried about those in power being above the law you should be giving full-throated support to a thorough and transparent investigation that shows the president himself is bound by the law of the land.

      2. Do you similarly expect to hope that Pres. Trump’s successor chases Pruitt, Price, Trump, Kushner, Trump, Conaway, Kobach, Lloyd, Zinke, and others?

        I do not, based on currently available information.

        1. Actually, yes, that would be great! I would love that sort of incentive for good behavior. The reason so much was done at the end of the Obama administration with FISA overreach, was because they were all convinced Hillary would win.

          1. I would love that sort of incentive for good behavior

            That’s not what it would incentivize.

            1. Okay then what would it lead to? Considering I already admitted that it would lead to a ton of pardons in the comment below.

              It would still be a step towards a system, a la Milton Friedman’s point, where even bad people find it’s in their own self-interest to behave well.

              1. It incentivizes the President to centralize their power and their party’s power in a permanent fashion, heedless of consequence because he’s assured of jail otherwise.

                If you think only bad Presidents would be persecuted under this, think of what Democrats would have been done to W. Bush and Reagan if this were the norm.

                1. “Ambition opposing ambition,” i.e. that the powerful are the only ones to take down the powerful (without mob justice) is one of the key understanding of human nature the founders baked into our constitutional cake.

                  Besides, your supposed downside about the centralization of power is already there, and in spades. If one president breaks the law, he better have a damn good reason for it, because he should know that they guy coming after him may not be of the same party.

                  Considering Reagan should have gone down for Iran Contra, I’m still not opposed to it, and neither should you be. Bad actors actually paying the consequence for their bad actions, is that so novel? Either you’re more jaded than I thought, or you’re letting your team colors show through to much because you worry about what it would mean for them.

                  1. It’s funny you think political trials would be about breaking the law. And that our political power is currently anywhere near maximally centralized.

                    We would become a dictatorship within a generation of opening that door to anything but the most extraordinary circumstances (read: impeachment)

                    1. That’s a hell of a slippery slope you’re envisioning there. Have you gone to a prepper survival expo lately and it influenced your thinking? Are you worried they are going to come for your guns too?

                      Seriously, before the civil service reform acts of the 19th century, virtually the entire federal government would swap out every 4 to 8 years. And while that had it’s downsides, we never saw what you’re envisioning.

                      Further, you’re taking the opposition position downthread that you believe James Comey, that while Hillary may have had classified materials on her harddrive….since (legal mumbo jumbo) therefore we won’t prosecute. If you don’t believe that’s not a political decision, rather than one on the merits of the case, when you could indict a ham sandwich, well, then you’re arguing out of both sides of your mouth.

                    2. I’m only paranoid if I think it’s going to happen. I think you have an awful idea, but luckily one that’s nowhere near coming to pass.

                      Did you lose the bubble on what we’re talking about? A nonpartisan civil service isn’t the issue – a norm of criminal investigation of the previous administration is.

                      Look around and at history. Those nations that regularly look into jailing their opposition are rarely the bastions of republicanism

                      Think about it – if you think you’re in danger of going to jail already, what’s the disincentive to going hog wild with partisan prosecutions? An opposition where everyone’s in jail won’t be strong enough to take power away from your party. Of course, to keep your party on your side, you’ll need to ramp up the red-meat nationalism and partisanship…

                      You and your compatriots have decided Comey, McCabe, Rosenstein, Mueller, and just about everyone who can hold Trump accountable are actually liars. The real truth comes from your own pieced together narrative and associated legal analysis. Furthermore, anyone who calls you on this is the real partisan.

                      This is rare for me, but I’m done engaging on people who eagerly relitigate Hillary on topics about Trump. It’s as pure as distraction gets, and offers nothing but the same well-trod ground.

                    3. “Walk away” if you’re unable to engage dispassionately then.

                      You’re not able to make the connection that America had a system for over half of its existence where the last administration COULD have been legally railroaded by the new administration because almost the entirety of the civil service swapped out…yet it didn’t happen. Hell, it could still happen now, but doesn’t.

                      I give more credence to that fact than that in 3rd world dictatorships they go after their political opponents with the power of the state. You need to brush up on your Tocqueville.

                      You don’t think Hillary did anything wrong? I’ve seen good men’s careers ruined for less, like not spinning the dial on a door to a classified space. We in the hoi polloi go to prison for classified emails on a private server.

                      Law breaking should have consequences, and that standard should apply to both parties. Your entire argument hinges on the idea that “everyone else is doing it mom, so I shouldn’t get in trouble for it too.”

                    4. Oh, I’ll engage on the policy issue, just ignore any Hillary BS you bring up. Not because of being to emotional, but because I don’t think there’s any value added.

                      We are talking about a norm here. A norm you want to end. That norm was clearly still in place back in the day, as it is today. Furthermore, I don’t see any less legal exposure if high-ranking political officials nowadays versus before the civil service.

                      Good point that one could reversing my causality about dictatorships and criminalizing the opposition…except where are the counterexamples going the other direction? Why has literally every single liberal country not adopted your policy?

                      The problem is that law breaking is very easy to gin up by partisans. Political trials have a long and sordid history, and not as a great way to find the truth.

        2. However, it would lead to a profusion of 11th hour pardons, even more than those done by G.H.W. Bush of the special counsel’s targets in his term, and Bill Clinton of his various cronies.

    2. A proper link for those who don’t want to click on a tiny url

      BREAKING: Obama Holdover Accused of Corruption Approved Trump Lawyer Raid

      Source: Frontpage Magazine.

      1. Thanks. Been thrown off by the limitation on link characters. I guess we can do HTML? Test

        1. Your welcome, there has been a significant history of tiny urls being used to con people into going to malicious sites, that’s why a lot of people won’t click them no matter how you describe the content.

          It’s best to avoid tiny urls.

      2. The linked sources (Columbia Journalism Review, Rolling Stone, Reuters, Wall St on Parade) are devastating . . .

    3. When the media first began to spin the raid on the president’s lawyer, they claimed that it had been approved by a Trump appointee. Of course it hadn’t. It came from Rosenstein on one end. And Trump’s appointee had recused himself.

      Rod Rosenstein is a Trump appointee, confirmed 94-6 on April 25, 2017.

  3. Gifford Pinchot was the silver-spooned nanny-stater who, as governor of Pennsylvania at Prohibition’s repeal, declared he would design emerging alcohol beverage regulations to shackle and frustrate producers and consumers of alcohol beverages.

    Someone who had known Pinchot told me that the man was not entirely bad, just mostly bad. It seems fitting that a reptile — a lizard — is named for Pinchot.

  4. “Special Prosecutor”

    Mueller is not a “Special Prosecutor” because the statute was repealed, he is a “Special Counsel” under DOJ regulations.

  5. Am I the only one who sees the inherent conflict of interest of law enforcement investigating their own bosses?

    1. There’s a kind of conservation of conflict of interests in government, I think. No matter how you arrange things, SOMEBODY is going to have a conflict of interest.

      In this case, either people in the DoJ can’t investigate the President without getting fired, or people in the DoJ can immunize themselves against being fired by investigating the President. Either way somebody has a conflict of interest.

    2. Serving at the pleasure of the President doesn’t mean you are a complete puppet of the President. Or even that the President has ways to easily and privately entice you.

      See: Saturday Night Massacre.

    3. Other countries have an agency that is outside of Executive Branch control to investigate crimes, like Israel, but not in our constitution. Madison and others expected Congress to be able to hold the Executive accountable, and actually thought that in confrontations, given the power of the purse, the House held the ultimate trump card. That logic is buried somewhere in one of the Federalist Papers, I can’t recall which.

      However, I don’t think that they foresaw so much authority vested in future presidents, much less special counsels, and such. Further, the emergence of political parties by at least the 3rd Congress, which they hoped wouldn’t happen, makes it so Congress rarely, if ever, holds accountable the Executive Branch unless it is the opposite party. Nixon is the exception.

      Taft, to his credit, and I have learned through these posts, had to put political party aside to put the interests of the Country (as he saw it) first.

      1. What they didn’t foresee is that Congress would voluntarily cede almost all of its power to the Executive branch just to avoid accountability for anything that went wrong, retaining just enough to keep the graft flowing.

        Presidents have rarely seized power that Congress didn’t voluntarily abandon.

  6. Thank you OP, if you are reading this, for responding to my critique about the do nothing Taft when contrasted with Hamilton’s point about a need for “energy in the Executive”, and making a post about the principle of the unitary executive. If you weren’t responding to my critique and had it planned anyway, than bravo!

  7. U.S. Forrest Service-Forest is spelled with one “r”.

  8. Thank you OP for this post about the unitary executive. I feel that you’re responding to my critique comparing a do nothing Taft to Hamilton’s support of “energy in the executive.” If you’re not responding to my critique and had it planned anyway, than bravo!

    1. The unitary executive is why the President has complete Constitutional authority over the entire executive branch, including all of these investigations, and the authority to fire anyone who is not part of one of the other two branches. This meme about an “independent FBI” that gets bandied about by Lyin’ Comey and the rest is an anathema to our Constitution.

      1. Yes, technically, but not politically. Be careful what you wish for in totally dispensing the nominal notion of an independent Justice Department….Obama could have just come and flat out said, instead of his sly signaling on the matter:

        “My fellow Americans. As I was a former Constitutional law professor, I know that the Constitution invests complete complete control of the entire executive branch in me. Therefore, you folks need not worry, as you all know I make sound decisions, like those stimulus funds to Solyndra. Now, to all the naysayers all wee wee’d off, let me be clear, I ordered Loretta Lynch to not prosecute our esteemed former Secretary of State HIllary Clinton in the email ‘matter’ because, after all, there is ‘classified’ and there is ‘classified’ and I only heard about it when I saw the news myself. Since loves America and would never INTEND to harm our beloved country, where there is no red America or blue America, only the United States of America, this cloud of mistrust should clear, and the regular folks at home can feel comfortable casting their votes for her this November.”

        1. We should note President Nixon could have openly shut down the Watergate investigation.

          He did not becsuse he did not want to oay a political price.

      2. Countries where executives exercise complete authority over the executive branch are not countries you want to live in.

        1. Aluchko — The U.S.A. has its problems but I still like living here.

          Since it appears you may not be familiar with the basics of our Constitution, read the first sentence of Article II Section 1. It is very short.

          1. (I’m guessing you don’t live in the U.S. or are not from here.)

          2. ‘Void where prohibited.’

          3. You’re unfamiliar with the basis of the sentence I wrote.

            “where executives exercise complete authority”

            Just because you have the power to fire people who investigate you and your allies doesn’t mean you should use it.

            The US is a not a country where the executive traditionally exercises the full extend of that power. Countries where executives do exercise that power are often considered to be authoritarian regimes.

            1. The executive has always exercised the full extent of that power.

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