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The Constitution will have the final word on President Trump
Even after the damning information revealed in Special Counsel Robert Mueller's redacted report yesterday, President Trump behaves as if he's in the clear, free from accountability. Memo to the President: the U.S. Constitution has something to say about that.
Anyone who thinks the process currently seems tilted in Trump's favor would have good reason. Last month, of course, Attorney General William Barr released an incredibly selective"summary" of Mueller's findings, allowing President Trump and the mouthpieces who serve him to trumpet the lie that Mueller exonerated him. Then yesterday, Barr put on a farcical press conference before he released the redacted Mueller Report, attempting to foam the runway for the news about to crash on Donald Trump's presidency. Naturally, that charade in front of reporters helped Trump claim victory all over again.
Make no mistake: Any confidence that Barr could be forthright on the tough rule of law questions swirling around his boss is now gone. The U.S. Attorney General is supposed to be the people's lawyer, impartially upholding the rule of law on behalf of all Americans. Sadly, as we saw yesterday, Barr is acting more like President Trump's personal attorney and public relations adviser.
Barr and Trump may believe, with these political parlor tricks, that they will avoid the reckoning otherwise compelled by Mueller's report. The flip side of that coin is that for the rest of us, sometimes we find it difficult to believe that the whole truth will come out, and that power will meet accountability. The seeds of that accountability, however, are planted in the Constitution. Article I and Article III provide our institutions significant power to check and balance any lawlessness of the chief executive of Article II.
Article I provides for creation of that chamber of Congress closest to the people, the House of Representatives. From there, the Chairman of the House Judiciary Committee, Jerrold Nadler (D-N.Y.), is empowered to take significant steps toward holding President Trump accountable to the rule of law and fulfill the critical oversight role of Congress. To get all the information Congress needs, Nadler has rightly issued a subpoena to the Department of Justice for the full and unredacted Mueller report, as well as underlying materials reviewed by the Mueller grand jury.
If DOJ refuses to comply, Nadler can turn to Article III, the federal courts, and sue the Trump Administration to enforce that subpoena. In addition, Nadler could also ask the judge supervising the grand jury to release certain grand jury materials.
Additionally, we must not ignore the grand jury itself. Twenty-three regular citizens, performing a solemn duty older than the nation itself, is supervised by the judge who empaneled them two years ago. Together, they have significant power conferred upon them by America's founders, through the text and history of the U.S. Constitution, to provide their own path to reckoning. Significantly, if these jurors felt that what they see in the public square doesn't represent their views of the case, they could request the judge to guide an appropriate release of a report of their own, either to Congress or even the public. Recall that during the Watergate investigation, Judge John Sirica fielded just such a request from the grand jury he supervised, and released to Congress materials regarding President Nixon.
Of course, the product of further congressional investigation and even grand jury involvement could be enough information - as if there isn't enough already - to confront President Trump with the same prospect that confronted Nixon, found in Article II itself: Threat of impeachment and removal from office. The ultimate constitutional sanction, this is reserved for government officials found to have committed "high Crimes and Misdemeanors" - a possibility that looms nearer today than it did before the Mueller Report was finally released.
President Trump, abetted in no small measure by an Attorney General acting increasingly as his personal lawyer, can shout his false vindication from the roof of the White House if he wants to. The Constitution, given force by We the People, will have the final word.
Elizabeth Wydra, a former clerk at the U.S. Court of Appeals for the Ninth Circuit, is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution's text and history. Follow her on Twitter @ElizabethWydra.