Did President Trump obstruct justice? While not all of the conduct that Special Counsel Robert Mueller considered would justify obstruction charges, some easily could. Trump did many things to try to impede investigations by the FBI and Mueller into his activities and those of his campaign. It is not surprising that Mueller declined to exonerate the president. But the more important question is how to hold Trump accountable.

Attorney General William Barr was right to reject obstruction charges, even if not all of his reasons for doing so were persuasive. According to long-standing Department of Justice guidelines, it would be unconstitutional to indict or criminally prosecute a sitting president, and there are strong arguments for that position. The remedies for misconduct by presidents include impeachment, denying them reelection, and prosecution after they leave office.

In other words, as long as Trump is president, the remedies are not legal but political–impeachment or voting him out of office next year. Continue Reading Obstruction of Justice and the Mueller Report

As Democratic voters weigh their choices for a nominee to challenge Donald Trump next year, they should take care not to succumb to the “savior” phenomenon. The public tends to develop exaggerated expectations as to what its leaders can accomplish. In a too-common view, if we could only identify the right person for the Oval Office, we could solve our country’s problems.

Candidates recognize voters’ desire for a savior and appeal to it in the way they speak about the presidential role and the results they promise to achieve. Recall, for example, Trump’s declaration that he “alone could fix” the system, or then-candidate Barack Obama’s pledge “to heal the planet.” Projecting strength, conviction, and certainty tends to win the day. Continue Reading Beware the “Savior” Phenomenon

Two weeks ago, President Trump broke with long-standing U.S. policy when he recognized Israeli sovereignty over the Golan Heights. In January, he recognized Juan Guaidó as the legitimate leader of Venezuela, rejecting President Nicolas Máduro’s hold on power.

Where in the Constitution does it give Presidents the authority to determine American policy on territorial or leadership disputes involving other countries? Nowhere. The Constitution makes our country’s foreign and domestic policies a shared enterprise between Congress and the President.

Congress passes laws, and the President implements them. The President negotiates treaties, and the Senate ratifies them. The Framers required a sharing of power because they recognized that if elected officials can act alone, without any checks or balance, the risk is too high that the officials will abuse their power. Continue Reading Unilateral Foreign Policy Decisions by the President

With Donald Trump and George W. Bush becoming President after receiving fewer votes than their opponents, calls to abolish the Electoral College have increased. U.S. Sen. Elizabeth Warren and other 2020 Democratic candidates are leading the charge. But while elections would be fairer without an Electoral College, they still would be unfair. Continue Reading Abolishing the Electoral College—Fairer but Still Unfair

IRSOne can easily imagine both good and bad reasons for the House Committee on Ways and Means to request President Trump’s tax returns. As U.S. Rep. Richard Neal wrote in his letter to the IRS Commissioner, Ways and Means has a responsibility to ensure that the Internal Revenue Service (“IRS”) is enforcing federal tax laws “in a fair and impartial manner.” It’s not acceptable to let people exploit their wealth or their political influence to avoid paying their rightful share of taxes.

On the other hand, House Democrats have strong political incentives to dig into the President’s tax returns and expose details that could weaken Trump before the 2020 election. Unfortunately, partisan considerations drive congressional oversight of Presidents. Members of Congress are too slow to investigate a President of their own party and too quick to investigate a President of the other party.

Accordingly, when Congress pursues its investigations of Presidents, it must do so in a way that provides assurance that it is acting in good faith and consistently with a legitimate legislative purpose. In this case, for example, the scope of the request for information should line up with the reasons for the request. If the goal of Ways and Means is to assess whether the IRS is enforcing tax laws in a fair and impartial manner, members of Congress would want to see a range of tax returns, from other very wealthy Americans (say Bill Gates and Warren Buffett) and other public officials (say members of Congress and governors).