The system of checks and balances is finally waking from its two-year slumber

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Amidst the incessant shock waves emanating from the Trump presidency, there’s solace to be had in one happy happenstance: people are re-learning basic civics. And in that connection, the process of effective self-governance is finally beginning to function again.

Most of us were taught in middle school that our government is one of separated powers created by three co-equal branches of government, with each checking the other two for abuses. The reason for the “three-headed boss” model is simple: the revolutionaries who fought and died for American independence from England detested autocracies. One thing’s for sure: Under the United States Constitution, a single boss of all bosses is intolerable. Period.

{mosads}This is why, regardless of individual political and ideological affiliation, every American should be concerned over the steady accumulation of unchecked power by the Trump presidency. The Teflon real estate mogul who boasted of his electability notwithstanding a hypothetical murder on New York City’s 5th Avenue has, indeed, withstood scandal after scandal — any one of which would have swiftly killed the careers of every other politician in the history of the United States.

Setting aside the adultery and hush money, vulgarities and insults, lies, apparent self-dealing, and international gaffes, this president has teetered above the law like no other before him. Consider the recent court filings by the U.S. Department of Justice, effectively naming Trump as an unindicted co-conspirator in two felonies and confirming that, despite his public protestations to the contrary, the president did have conversations with transition team members about communications with Russia in the months leading up to his inauguration in 2017.

Does any such activity amount to a prosecutable crime? Beats me. An answer to that question requires consideration of all the facts, which the public does not have.

Is it impeachable? Maybe. But that’s a political judgment that only Congress can make.

So far, congressional Republicans have looked the other way rather than perform the most rudimentary of oversight. The legislative check on the executive branch has been “out of order.” 

That leaves us with the two remaining branches. The second branch — the executive — is controlled by Trump himself. Special counsel Robert Mueller has a modicum of independence, to be sure. But unlike independent counsel Kenneth Starr, whose power to investigate President Clinton stemmed from an act of Congress that has since expired — Acting Attorney General Matthew Whitaker has the legal power to slow down (or even stop) Mueller from investigating whether their joint boss, President Trump, violated the law. The fact that Whitaker has not stymied the multiple federal probes into Trump and his associates is significant. It means that career public servants are keeping things running behind closed doors — at least for now. 

But what if these folks go rogue? After all, Trump himself has repeatedly assailed the FBI and people on Mueller’s team as politically motivated witch hunters. Lawyers for the Russian company Concord have also vigorously argued in federal court that the Mueller investigation has usurped the law in connection with the grand jury’s indictment of Concord and other Russian entities over alleged interference with the 2016 presidential election.

That’s where the third branch of government comes in: the courts. It’s somewhat ironic that one of the biggest national traumas of 2018 (among many) was around the confirmation of Justice Brett Kavanaugh to the U.S. Supreme Court — a spectacle that was problematic for its grotesque politicization of the federal bench, among other things. It’s ironic because federal judgeships come with life tenure — they’re uniquely designed to be apolitical.

At the end of the day, moreover, courts — to a much greater degree than legislators and agencies — are inescapably bound and limited by a set of neutral rules. Rules of evidence limit what facts judges and juries get to consider in deciding whether to put someone in jail. 

Biased judges can’t get away with having secret, off-the-record dealings with parties to a dispute. Laws contained in statutes, regulations, and the Constitution itself confine what kinds of conclusions judges and juries get to draw around sets of facts, and what consequences can be imposed as a result. And if someone (including a Russian company) is adversely impacted by a court’s decision, that party has a right to have the ruling second-guessed by a higher court on appeal.

None of these protections apply to the political maneuverings by elected officials and their underlings. The fact that the American court system does not operate by bribes, campaign donations or political favors — but instead by facts, laws, procedural rules and appellate review — is extraordinary. 

Let’s not forget, too, that the American system of checks and balances is enhanced by the sovereignty of the states, each of which has its own sets of laws, politicians, judges and prosecutors. The president cannot pardon those convicted of state law crimes, and Whitaker cannot control state authorities from pursuing their own investigations — even if the subjects are the president’s foundation, his businesses, and/or his children.

As Democrats control of the House of Representatives, all three branches will rejoin the states in the quest for public accountability. The legislative branch will wake from its slumber and the American system checks and balances will begin to work again. 

To be clear: For the enduring legacy of American democracy, it’s the process that matters here. If politicians — including the president — are subjected to oversight by states’ attorneys general, the courts and the voting public through elected legislators, all cannot be lost. This is so, whether or not today’s drama results in a Nixon-ese ouster of Trump or a second term in office. With the gears of accountability churning again, we should all thank providence that the rule of law — so far — is holding.

Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book, “How to Read the Constitution and Why,” will be published in the Spring of 2019. Follow her on Twitter @kim_wehle.

Tags Brett Kavanaugh Congress Donald Trump executive branch Kim Wehle Robert Mueller Separation of powers Supreme Court White House

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