President Trump's nominee for the position of Attorney-General, Senator Jeff Sessions, has recused himself from overseeing an investigation into his own comments about meetings with the Russian Ambassador. As he is obviously the focus of the investigation, there is an obvious conflict of interest and recusal is appropriate.
The question that remains is whether it is sufficient. Many observers are withholding judgment until the special prosecutor is chosen. Recently, it has been the personal reputation of the official to whom decision making has been delegated that determines whether an investigation is deemed credible. Sometimes, the inevitable assertions about the chosen investigator's integrity corresponds with popular perceptions about the outcome (for instance, the decision to prosecute "Scooter" Libby for blowing the cover of an officer of the Central Intelligence Agency) while in other investigations, the perception of the impartiality of the investigation has remained in dispute after its conclusion (e.g. FBI Director Comey's decision not to recommend that the Department of Justice seek an indictment against Hillary Clinton for mishandling classified documents).
The reason why the identity of the investigator matters is because these so-called recusals are really only half-recusals -- the official who is operating under the conflict of interest (and/or their superior, the president) continues to maintain ultimate authority over the person they delegate (or whom their delegate chooses, e.g., the special prosecutor who will be chosen by Sessions' Deputy Attorney General, another presidential nominee). At the end of the day, if the special prosecutor has a reporting line that runs to the president, the President can influence the investigation. Even if the investigator really is incorruptible, the President can fire them, and the official who appoints them has a clear incentive to find someone with that reputation but who is in actual fact sensitive to the pressure of termination or other career-ending tactics.
This is exactly what happened when the Watergate investigators came to close to uncovering evidence of President Nixon's wrongdoing, after following a trail that passed through an indictment of Attorney General John Mitchell. Two months after Mitchell's indictment, Nixon commanded his new Attorney-General (and then his Deputy after that official refused) to fire Special Prosecutor Archibald Cox. Ultimately, Cox was fired by Solicitor-General Robert Bork after Nixon promised to reward him with a nomination to the Supreme Court (Bork was in fact nominated for such a position before that corrupt bargain was revealed; after his nomination failed he returned to his lifetime appointment on the seat of the nation's second most influential court, the D.C. Circuit). There is always an executive branch official that will comply with an order to end an investigation.
There was a solution to this problem, and Congress adopted it in 1978. The Ethics in Government Act set up the Office of Independent Counsel, which created a system where the special prosecutor would be selected by a panel of judges and could only be dismissed after a showing of good cause. They would then be empowered to investigate senior executive branch officials (and those involved in presidential election campaigns) with no limitations on the budget or where the investigation might lead.
Unfortunately, that office was abolished in 1999, and replaced with the toothless Office of Special Counsel, which operates under federal regulations that the executive can amend at will, and which also establish that "the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued." The Attorney-General can also terminate the Special Counsel, as was the case in the Saturday Night Massacre.
It is unclear why Congress decided to give the executive back this power. It is particularly unfortunate, as the investigation of Sessions bears substantial similarities to the investigation of another of Nixon's Attorneys-General, Richard Kleindienst, who was ultimately convicted of withholding information from Congress during his confirmation hearings. (That said, there are important differences between the Kleindienst and Sessions allegations, particularly as Sessions was serving as a Senator at the relevant time, which invests him with the immunities created by the Constitution's Speech and Debate Clause).
It is unlikely that the allegations against Sessions will ever receive an adequate appraisal. The abolition of the Office of the Independent Counsel politicizes every investigation of executive branch officials. Instead of discussing the legal standards and the boundaries of executive accountability, the press and public are reduced to discussing the character (or personality, or political affiliation) of the investigators and of those arguing that they exceeded the scope of their authority, as was the case during the Hillary Clinton email controversy. Ultimately, the only decision that the public can make is about whom to trust. This is precisely the kind of argument that a political strongman likes to make, and which the rule of law was designed to pre-empt.
A return to legal norms requires the reconstruction of legal authority. A pastiche of justice merely erodes popular confidence in the possibility of apolitical justice; this is what allows Trump to make more arguments about how all the opposition is merely partisan.
Last week the Deans of the Harvard Law School and the Yale Law School wrote a "blistering" joint op-ed for the Boston Globe denouncing President Trump's recent statements about judicial opinions (including those in Washington v. Trump), which also criticized members of the judiciary. Speaking on behalf of the American legal academy, Deans Post and Minow characterized Trump's comments about "so-called judges" as threats to the democratic political order and American values. While the target of their attack is clear, what it defends is not obvious.
In the rousing conclusion of the op-ed, Post and Minow invoke the rule of law, around which they encourage the American people to rally. Despite according it the highest value, the Deans do not define the rule of law, although they appear to equate it with adherence to a legal order in which "official, publicly justified sanctions [are substituted] for animosity and enmity". It is also cast as the opposite of tyranny, a state of affairs in which a "so-called president" can presumably pursue vendettas without restriction.
Despite vague allusions to a whole range of American values, the deans' vision of the rule of law is surprisingly thin; it could just as easily be called legality, or legalism. It seems strange, however, to say that whatever a judge would opine should be above criticism merely because of their status as the guardians of the laws, as if the content of the laws does not matter. However, this empty formalism and "the legitimacy and authority of judges" may be all that the American legal profession has to defend.
Trump purported to suspend the entry of hundreds of thousands of immigrants and refugees. His full-throated cry for unfettered control received the response from the judiciary (and now the professioriate) that one would expect. However, President Obama made the same argument repeatedly, although more quietly and successfully. In Kiyemba v. Obama, twenty-two Uighur detainees--who had never been labelled enemy combatants--argued that they should be released from Guantanamo Bay. Despite being granted habeas corpus, the government's lawyers argued that no court had the power to admit them into the United States (as this belongs to the executive exclusively), even if this was done to bring the detainees into the presence of the court adjudicating their petitions.
When the Supreme Court refused to uphold the grant of the writ, it struck a dagger into the heart of the rule of law. It allowed the government to prevent courts from giving relief to those that the government detained illegally, even while it admitted they were factually innocent. The Deans of Harvard and Yale penned no op-eds about Kiyemba, just as they held their silence when a court upheld the targeted killing of an American citizen, wherein it concluded that while "[T]he plaintiff asks this court to . . . assess the merits of the President’s (alleged) decision to launch an attack on a foreign target . . . [that] happens to be a U.S. citizen, the same reasons against judicial resolution of the plaintiffs’ claims . . . apply with equal force."
For fifteen years, American courts used smooth language to justify handing unreviewable powers to the executive with no complaints from the nation's law deans. Now that Trump is asserting that he can use these powers as he pleases, they label his statements as a danger to the rule of law. Unfortunately, the op-ed presents Trump with ample opportunities for a counter-attack. The deans fail to understand that Trump attacks judicial decisions as politically biased, and driven by the political affiliations of the justices. In condemning Trump's order banning refugees from the country but not Obama's order barring Guantanamo detainees seeking justice, the Deans exemplify the legal profession's tolerance for executive power during the Obama administration. Trump's appeal is closely related to his disdain for elite hypocrisy: the deans should have been more careful not to provide him with an opportunity to deploy one of his favourite rhetorical weapons.
There are other indications that the theoretical basis for Minow's attack on Trump is not as solid as it should be, leaving them exposed to counter-attacks. They invoke the "political philosophy" of the Nazi jurist Carl Schmitt as a forerunner of the President's belligerent approach, while failing to note that within their own law schools numerous professors have--for decades--held up Schmitt's work as a persuasive rebuttal of classical arguments about the rule of law and the reality of a division between law and politics. It would bring a cynical smile to the face of anyone who studied jurisprudence in an elite American law school to see Schmitt being deployed as a bogeyman, as his work was routinely cited with approval by numerous leading legal scholars.
If the president's party (or ideology) defines his critics' stance on executive power and the parameters of the rule of law, then these Deans are right to throw their weight against criticism of the "authority and legitimacy of the judiciary", as its ethos serves as the last remaining justification for a role for the legal profession in the American state. However, one might hope that within the American legal academy there are still scholars who can demonstrate that one's defence of the constitutional order can be principled and consistent.
The same week that the 9th Circuit released its opinion denying a stay in Washington v. Trump (see last post below) that court released an opinion that disposed of a momentous case brought against the government. The fact that the stay order received so much attention and the final order in Saleh v. Bush says much about the failure of the judiciary to protect the rule of law in any meaningful way.
The plaintiff in Saleh was an Iraqi immigrant who, along with other members of a class who sought to bring claims against high officials of the Bush Administration for what they suffered during and after the American invasion. He claimed that Donald Rumsfeld and others had planned an illegal war and used the panic that ensued after the 9/11 attacks as an excuse to put the plan in motion. (There is ample evidence for this, but one need only point to the Bush Administration's consistent insinuation that Saddam Hussein sponsored the attacks.)
Despite the defendants admissions, and the reports of multiple official inquiries conducted into the illegality of the Iraq War that concluded that the United States had committed the "supreme international crime" of waging aggressive war, the case was dismissed. The plaintiffs were not even permitted to present the shocking evidence against Rumsfeld et al. that they had compiled. The courts concluded that former government officials were (or would be) immune from suits alleging that they had committed war crimes.
American courts have acknowledged that there are certain offences that are so serious that that those who commit them are the common enemies of mankind, who can be prosecuted in any court. The Nuremberg defence that a war criminal was "only following orders" and doing what was not illegal in a foreign country has been categorically rejected. However, the judiciary has not allowed suits against American war criminals to proceed; Saleh was dismissed because these former high officials were immune from prosecution in American courts. It is not the nature of the crimes that mattered, but the status of the defendants.
No American has been prosecuted for violating the most fundamental set of rights while conducting the "war on terror". Those who tortured detainees were immunized by act of Congress, while those who planned that torture (including Donald Rumsfeld, again) were protected with the doctrine of qualified immunity or Westfall Act (which require the implicit conclusion that planning war crimes was part of their official duties),while the whistleblowers who revealed these crimes were locked up.
As I detail in my book, wherever a possibility remained to bring actions against US officials, the courts went out of their way to tell the legislature how to take action to eliminate it. In Saleh, the opinion concludes--gratuitously--that Congress could immunize executive branch officials from all claims for violation of jus cogens norms (including torture, slavery, and genocide). (If this seems far-fetched, one should remember that in 2003 Congress passed the American Service-Members Protection Act, which authorizes the President of the United States to invade the Netherlands if any American is put on trial in the Hague for war crimes.)
The Saleh opinion was released on a Friday, so that it might pass through the news cycle unnoticed, while the (ultimately insignificant) denial of the stay in Washington v. Trump was released to great fanfare. The latter waxed poetic about the rule of law to no significant effect, while the former landed a muted but devastating blow. How can there be a rule of law if there is no forum where the executive can be held accountable?
The short answer is that without courts willing to hold the executive responsible for violations of the most fundamental rights, there is no rule of law (this is my book's main argument, by the way). This really should surprise anyone familiar with the history of our constitutional tradition, which emerged as a response to the argument that no one had the right to hold the executive accountable. The world's leading human rights lawyer (Geoffrey Robertson) detailed this history in The Tyrannicide Brief. As every schoolchild used to know, King Charles I, when put on trial, spoke only once, at the outset of the proceedings. He began his infamous speech by challenging the court's power to judge him:
"I would know by what power I am called hither ... I would know by what authority, I mean lawful."
The only answer to this question is the rule of law. If governments are permitted to re-empower the executive to plead in the same manner as Charles I and the defendants at Nuremberg, we have abandoned the idea of a government of laws, and not of men. One might as well allow the president to wear a crown, or let his assistants carry fasces.