A coming test of tolerance and political accountability

A coming test of tolerance and political accountability
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Prognosticating about the future is always a tricky business. But 2018 is likely to be a year that tests the nation's commitment to two core constitutional values: tolerance and political accountability. The first is reflected in the Constitution's First Amendment; the second, in its separation of powers.

On the First Amendment front, the Supreme Court is slated to rule on a trilogy of cases with significant implications for freedom of speech, association and religious exercise. In each of these cases, the central theme is tolerance: Must the government tolerate dissenting views, or may it force individuals to speak and associate against their will?

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In Masterpiece Cakeshop, for example, the court must decide whether a Colorado man with traditional Christian beliefs has a First Amendment right to refuse to make a custom cake — an expression of celebration — for a gay wedding. Similarly, in National Institute of Family and Life Advocates, the question is whether pro-life groups in California can be forced to advertise, in a "conspicuous place," the availability of state-subsidized abortions. And in the Janus case, the court will determine whether the government can force nonunion workers to pay union fees, thereby mandating an expression of support for activities with which they may disagree.  

 

The growing impulse to use government power to clamp down on disfavored viewpoints also will play out in lower courts. Of particular importance are cases involving actions by public colleges and high schools that limit the ability to express and hear certain ideas. The unifying theme is the same as in the Supreme Court's First Amendment trilogy — namely, squelching expression and association that those in power consider offensive, crude or controversial. Indeed, it is not uncommon these days to hear otherwise serious educators publicly pronouncing that "hate" speech is tantamount to "violence." It is a flatly wrong legal position, but it is increasingly embraced by impressionable young minds attending educational institutions that encourage and exemplify intolerance of disfavored views.

And 2018 should bring important tests for the Constitution's separation of powers, which protects liberty by diffusing power and providing an elaborate system of checks and balances. This edifice will be stressed by special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE, whose jurisdiction is to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump" and matters that "arise directly" from such investigation.  

Thus far, Mueller's investigation has yielded only four charges unrelated to Trump-Russia collusion, triggering congressional criticism that it has morphed into a fishing expedition. Revelations of political bias by members of Mueller's team have caused Congress to investigate the investigators. The FBI and Department of Justice have not responded to congressional subpoenas seeking information about the genesis and use of the discredited Steele dossier on Trump-Russia collusion, leading the House Permanent Select Committee on Intelligence to threaten contempt against FBI and DOJ leaders and to conclude that "the committee no longer credits the representations made by DOJ and/or the FBI regarding these matters."

Given these developments, a 2018 showdown between Congress and the investigators is coming, and arguably was inevitable from the start. Unfortunately for the Constitution's separation of powers, however, Mueller's investigation is dangerously insulated from political accountability.

Mueller is not accountable to Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsDems seize on Times bombshell to push allegations of Trump obstruction Mueller report may be 'anti-climactic,' says ex-intelligence director CNN ripped for hiring former Republican operative as political editor: 'WTF?!?!' MORE, who recused himself. Deputy Attorney General Rod RosensteinRod Jay RosensteinDems seize on Times bombshell to push allegations of Trump obstruction Trump calls Andrew McCabe a 'poor man's J. Edgar Hoover' CNN: DOJ preparing to announce end of Mueller probe as soon as next week MORE theoretically could rein in Mueller, but Rosenstein's deputy status and the investigation's political sensitivity make his intervention exceedingly unlikely. President TrumpDonald John TrumpJustice Department preparing for Mueller report as soon as next week: reports Smollett lawyers declare 'Empire' star innocent Pelosi asks members to support resolution against emergency declaration MORE has authority to fire Mueller but, again, the highly politicized environment and nature of Mueller's jurisdiction has weakened the president's otherwise robust constitutional authority to effectively check a special counsel. Firing Mueller could happen, but it would come at a high political price and create an unpalatable impression that the president has something to hide. Likely for this reason, President Trump has deflated rumors of any such plans.

Assuming the president continues to resist the urge to fire Mueller, the only remaining actors capable of checking the special counsel are Congress and the judiciary. The judiciary could conceivably check Mueller through litigation challenging the legitimacy and exercise of the special counsel's authority. But litigation is a slow process, and delay would limit the usefulness of this judicial check. This leaves Congress.  

Today’s Republican Congress has indicated interest in keeping tabs on Mueller's investigation, but other than holding hearings, can Congress effectively check his authority? Funding for Mueller's investigation comes from a permanent, indefinite appropriation to the Department of Justice. So while Congress could pass a rider to prohibit further spending on Mueller's probe, it is not going to happen because it would take 60 Senate votes — all Republicans plus nine Democrats — to overcome the predictable filibuster.  

Congress's remaining arrow in its quiver is contempt but it, too, has severe limitations. Criminal contempt is highly unlikely, since it would necessitate convincing the DOJ to initiate prosecution of its own high-ranking officials. Alternatively, Congress could file a civil contempt lawsuit, but past suits against President George W. Bush’s former White House counsel Harriet Miers and President Obama's Attorney General Eric HolderEric Himpton HolderBarack, Michelle Obama expected to refrain from endorsing in 2020 Dem primary: report Ocasio-Cortez to be first guest on new Desus and Mero show Holder says he will make 2020 decision in coming weeks MORE indicate that such litigation is time-consuming and highly unlikely to result in any penalties or turnover of information. Finally, the Supreme Court long has recognized that Congress possesses inherent power to punish contempt using its own Sergeant-at-Arms, but modern congresses have been unwilling to exercise this power and it has lain unused since 1934.

James Madison suggested in Federalist No. 51 that if men were angels, there would be no need for checks and balances. Although Mueller has enjoyed a reputation as a decent, professional man, he is no more an angel than other men. If Mueller's actions become unacceptable in the eyes of Congress, the president, or “We the People,” there is little that can be done. His relative insulation from political accountability thus poses a potential threat to our Constitution's separation of powers.  

The new year will determine how effectively our 230-year-old constitutional republic can withstand this threat, as well as the growing threat of intolerance.

Elizabeth Price Foley practices constitutional law in Washington, D.C. and is a constitutional law professor at Florida International University College of Law in Miami.