BY KEITH M. JUDGE
On the 16th of April, 2018, 6 members of the Senate Judiciary Committee voted to pass a bipartisan bill designed to fortify The Office of Special Counsel, a position created at the request of President Grant. After The Civil War, Union soldiers expected something more than a lowly government office in The Department of Treasury or Post Office for their service, so they scooped it out of a grossly inflated tax on whiskey, and Grant was forced to clean house.
If The Confederates were conquered by a disciplined force of citizen-warriors who were steadfastly bound by a set of common principles, perhaps they would have chafed less at the terms of their defeat. The conduct of government and The U.S. military following Abraham Lincoln’s death rendered long-term disbelief in the moral rectitude of The Union’s purpose in The South, a disbelief that was shared by prominent African-American abolitionist Frederick Douglas. If there is ever another war of this magnitude and character, the enemies of democracy must be dutifully observed, with love and vigilance against intolerance and hatred. The enemy must swallow his medicine, no matter how long it takes or how intractable he may be, until we are no longer enemies.
In post-World-War-Two United States, The Office of Special Counsel, which empowers The Executive to investigate itself and the departments under its direction, has become the site of a legal and political battle to define limits on the separation of powers that has been ongoing for at least 94 years. The Special Counsel Independence and Integrity Act introduced on the 16th of April, 2018, currently sits on the desk of Senate Majority Leader Mitch McConnell. The bill reaffirms our belief that no man is above the law, a sentiment shared by the men and women who fought and died to raise this country out of the cradle of a war with the government of King George The Third. Regardless, today’s Republican Leadership opposes the bill.
We’ve arrived at a juncture in history when The Senate Majority is resolute in its support for executive power, which is universally recognized as a principal cause of The Revolutionary War. Even if Congress passed a law that allowed a special counsel to appeal his or her removal by The Attorney General, and to know the reason for his or her removal, Trump would veto that document, but there’s no need. Mitch McConnell has kindly spared America’s self-appointed monarch the embarrassment of having to veto a bill that threatens to curtail his tendency to openly flaunt the law.
Why would Senate Leadership do that?
In 1926, Supreme Court Justice and former President, William Taft, wrote the majority opinion in Myers v. United States with meticulous attention to the historical record in just over 96 pages. Supreme Court Justice opinions are rarely longer than ten pages. Taft lingered with excruciating attention to the language in his opinion of why he believed The Wilson Administration was within its legal right to terminate Frank S. Myers, a first-class postmaster in Portland, Oregon, without the consent of The Senate. Prior to Myers v. United States, postmasters could “be appointed and may be removed by the President by and with the advice and consent of the Senate.” The Constitution also clearly states that The President may nominate “principal” officers “with the Advice and Consent of the Senate,” that all of “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” All of The Executive Branch with the exception of The President owes its existence to Congress.
The Congress shall have Power To . . . make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Hell, Congress could remove The President with a single amendment to The Bill of Rights if it so desires. It’s the only branch of government capable of editing the structure of government. However, as it stands, The Constitution is silent on the question of removal. Does it grant The Executive exclusive right to remove officers in government? This power was debated at length by The First United States Congress, which was stacked with Federalists, who were universally reviled as “monocrats,” and almost entirely chased out of government by the plurality of the electorate less than one generation after the ratification of The Constitution. Rhode Island and North Carolina percolated with Anti-Federalist sentiment, and Rhode Island’s “Country Party” was staunchly Anti-Federalist. Such fiercely independent sentiments encompassed nearly every office of government in Rhode Island at the time.
Anti-Federalist leadership consisted of former low-ranking officers and enlisted men. Among them was William West. West was a former soldier, tavern owner, molasses distributor, a colonel in The Continental Army, Deputy Governor of Rhode Island, and Justice of The Rhode Island Supreme Court before he lead a thousand enlisted men into Providence on July 4th, 1788. Their intention: to squash a celebration of The Constitution, which had been ratified by over two thirds of the first thirteen colonies after New Hampshire entered her name as the ninth signatory on June 21st, 1788. Virginia and New York bowed to the two-thirds majority and folded shortly thereafter, on June 25th and July 26th, respectively. North Carolina wouldn’t ratify The Constitution until November 21st of the following year. Rhode Island wouldn’t sign until May of the year after that. When Justice West mustered 1000 men to march on Providence, he marched with 2000 fewer than they who volunteered.
The public at large, seeing preparations for so public a celebration of the adoptions of the same constitution, which had already received the disapprobation and disgust of at least four-fifths of the individual inhabitants of this state, as well as of the legislative authority of the state, did thereupon, at once, perceive, that said entertainment in such a public manner, was intended as a public insult upon the legislative authority of the state, as well as the body of the people at large, and that their invitation to the particular officers, as well as the general invitation to the country, was intended as an aggravation to the insult; and that the celebration of Independence [was] merely for the purpose of alluring the country to join with the designing few . . . and thereby take occasion to represent to the other states, that town and country had joined to celebrate the adoption of said constitution, and insinuate that the opposition of this state to the constitution, was given up. On which consideration the [people in the countryside were] roused with indignation and resentment against the artful and designing few, who would thus publicly insult the dignity of the state, and at the same time, thus craftily endeavor to allure the unwary, ignorantly to assist them in the prosecution of their nefarious schemes, and were determined, if possible, to prevent the celebration of the feast on the proposed principles and to support the dignity of the state.
Elaborate PR stunts, propaganda and general subterfuge were the hallmarks of Federalist politics. The only reason their ideas gained notoriety was because they were rich and possessed a monopoly on the presses. Hamilton furnished manumission societies to hurt his economic competitors; not out of sympathy for enslaved persons. If he could pre-empt a Civil War and destroy his political rival’s estates in the midst of strife while lowering wages on his workers, he would readily have sacrificed America’s working men and women to empower himself, but Aaron Burr corrected the problem.
Rhode Island was the only state that refused to send delegates to The Constitutional Convention. They were convinced the meetings were convened to empower the central government and Executive Branch. In their defense, The People of The United States would be asked to vote for President, but not The Constitution, so there’s no telling if the majority of Americans in 1788 approved of the document, but delegates from over two-thirds of the first thirteen colonies approved it, and with New Hampshire’s vote, The Constitution became a foregone reality, even if the outcome wasn’t unanimous. As a result, the original composition of the government immediately rendered following The Constitutional Convention in March of 1789 included only 11 of the 13 original colonies. That didn’t prevent Federalists, who occupied The White House, the majority of The House, and the majority of The Senate, to conduct the business of government without the contributions of Anti-Federalist dissidents from the states of Rhode Island and North Carolina.
Taft’s seminal and oft-quoted opinion in Myer’s v. United States borrows heavily from this period, when a group of moneyed individuals consorted to usurp Congress in a bid for reformation that wasn’t unanimously supported by the colonies. The average American at the time probably wondered why their delegates didn’t simply conduct themselves in the business of amending the document they had already written, The Articles of Confederation, which was declared Law of The Land by unanimous decree. During this contentious period in the nation’s history, Madison proposed the establishment of a Department of Foreign Affairs on June 16, 1789. In their deliberations, the abridged Congress lauded the powers of The President and decided in their colleagues’ absence that “the power to remove officers appointed by The President and The Senate vested in The President alone.” Taft insists that “until the Johnson impeachment trial in 1868 its meaning was not doubted,” but a significant minority of Justices have roundly refuted that assertion (Majority: Taft, Van Devanter, Sutherland, Butler, Sanford, Stone; Dissent: Brandeis, McReynolds, Holmes). Where Taft expounds on the minutiae of a select few incidents in history that support the premise of unmitigated, executive powers of removal, Justice Brandeis unleashes volley after volley of legal decisions, court opinions and historical precedents that support Postmaster Myers’ legal claim.
Over removal from inferior civil officers, Congress has, from the foundation of our government, exercised continuously some measure of control by legislation. The instances of such laws are many.
The Tenure of Office Act of 1820 limited appointments to four years and is among the most obvious examples of The Senate’s power to participate in the appointment and removal of government officials. The Tenure of Office Act of 1867 expanded on this law by preventing The President from suspending an officer without appointing a new one. The Tenure of Office Act was amended in 1869 and repealed in 1887, yet was still considered lawful. Brandeis quotes legal scholar and political heavyweight, Daniel Webster, a former Federalist, no less, who refuted the concept of “removal” entirely.
‘If one man be Secretary of State, and another be appointed, the first goes out by the mere force of the appointment of the other, without any previous act of removal whatever. And this is the practice of the government, and has been, from the first. In all the removals which have been made, they have generally been effected simply by making other appointments. I cannot find a case to the contrary. There is no such thing as any distinct official act of removal . . . These are usually cases in which the object is, not to inform the incumbent that he is removed, but to tell him that a successor either is, or by a day named will be, appointed.’
Taft sifts through the historical record and pans for rhetorical gold in his defense of presidential power while Brandeis simply reads the record. Alas, The Tenure of Office Act was ruled unconstitutional after Taft convinced the majority to rule in favor of President Wilson in Myers v. United States. At the core of his argument was a perverse loyalty to a narrow, rigid and suffocating point-of-view that’s bereft of logic.
‘If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. If there is any point in which the separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices’ . . . From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires.
The only reason a group of individuals endeavors to fracture a government into branches is to distribute the powers of government. A government in parts can’t function without delegating authorities and responsibilities to each limb, which are intended to work together and contribute to the same end. A government in parts is originally, naturally and irrevocably “blended.” If a representative can’t finish his term, his governor appoints a replacement. Only The House of Representatives has the Power to impeach, and the Senate tries the impeachment. The Vice President is The Senate tie breaker and Congress creates government so The President may employ it “with the Advice and Consent of the Senate.” You can hardly read one section of The Constitution without finding some evidence of so-called “blending,” yet Taft paints a picture of persecution in plaintive hues that he leverages to heap even more privilege on the Executive.
It has been objected that the Senate have too much of the executive power even, by having control over the President in the appointment to office. Now shall we extend this connection between the legislative and executive departments which will strengthen the objection and diminish the responsibility we have in the head of the executive?
Taft refers to The President’s “great powers,” and a “great responsibility” to the “unitary and uniform execution of the laws” to defend his notion of executive purity. Justice Oliver Wendell Holmes Jr., who believed “the law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics,” challenges Taft’s voluminous opinion in five bold sentences.
We have to deal with an office that owes its existence to Congress and that Congress may abolish tomorrow. Its duration and the pay attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it and at any time may transfer the power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end. I have equally little trouble in accepting its power to prolong the tenure of an incumbent until Congress or the Senate shall have assented to his removal. The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.
A legal and political battle to define the seat of power that’s as old as The Continental Convention seethed beneath the veneer of American politics between 1926 and 1988. During this time, Taft’s reference to a “unitary and uniform execution of the laws” developed cult status in country clubs and smoking rooms across the nation. Among the fringe legal theory’s adherents is Ted Olson, Reagan’s former Assistant Attorney General for the Office of Legal Counsel between 1981 and 84, who was the subject of scrutiny in a case heard by a court that included Justice Antonin Scalia. Both Scalia and Olson are founding members of The Federalist Society, which describes itself as “an organization of 60,000 lawyers, law students, scholars, and other individuals . . . founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
The dispute began in 1982 after Congress asked The EPA for some financial documents. Ted Olson took this as an opportunity to embark on a political crusade and provoke a constitutional crises. With neither the consent nor knowledge of The EPA Administrator, Anne Burford, in a memo dated October 25th, 1982, Olson advises Reagan to shield the EPA’s financial documents from public view because he alleged their release would complicate the department’s ability to enforce cleanup laws. Historic tensions between the branches of government have conjured into existence a tentative acknowledgment of The Executive’s right to some measure of unobserved communication. “Executive privilege” isn’t mentioned in The Constitution, but is universally recognized and legally limited to communications that contain no evidence of wrongdoing.
It turns out, The EPA’s financial documents contained evidence of wrongdoing, but Ted Olson’s memo to Reagan explicitly reassured the president that no such evidence existed. It doesn’t help that Olson “appeared to construe questions as narrowly as they reasonably could be interpreted” while providing testimony to the House Judiciary Committee on March 10th, 1983. Over two years later, The Judiciary Committee urged Attorney General Meese to appoint an Independent Counsel, so he tapped Alexia Morrison, but limited the scope of her investigation to a single offender: Ted Olsen. Olson shit himself, sued Morrison and the case eventually landed in the Supreme Court.
Justice Scalia contributed the pernicious, lone dissent. Quotes from The Federalist Papers appear like mile markers for the duration of his argument. “The Founders conspicuously and very consciously declined to sap the Executive’s strength in the same way they had weakened the Legislature: by dividing the executive power,” Scalia writes. He makes no secret about the object of his argument.
That is what this suit is about. Power.
Scalia dedicates so much time discussing the extent of executive power, he forgets to reflect on its limits. The remainder of his dissent is a five-part presentation of the Platonic “unitary Executive,” a rehashing of Alexander Hamilton’s most dangerous political beliefs, which were revived in earnest by Scalia and Olson when they founded The Federalist Society, a charitable trust that honors America’s first political party. Scalia acknowledges the political stalemate created by The Constitution’s silence in the arena of removals, then proceeds to plough forward with a radical notion completely untethered from reality.
‘The executive Power shall be vested in a President of the United States.’ As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power.
The Constitution doesn’t vest the President with “all” executive power. Any branch of government granted total power unto itself can’t be considered part of a whole, and more closely resembles a government unto itself, separate from and in conflict with The United States. Scalia states his belief that “criminal prosecution” is under the “exclusive control” of The President. He bristles at language in the unanimous opinion in Humphrey’s Executor v. United States, which reaffirmed Congress’ right to place conditions on the President’s power to remove “inferior” officers.
The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.
The theory of the “unitary executive” championed by Neo-Federalists is a radical departure from Taft’s “carefully researched and reasoned 70-page opinion,” which Justice Scalia is conspicuous to mention in the body of his dissent. Even Taft recognized Congress’ power to create offices and exercise limits on those offices.
It is said that similarly in the case of the executive power, which is ‘vested in the President,’ the power of appointment and removal cannot arise until Congress creates the office and its duties and powers, and must accordingly be exercised and limited only as Congress shall in the creation of the office prescribe.
Scalia’s rhetorical strategy consists of a combination of brow-beating, indignation and fear-mongering that reduces any attempt at congressional oversight to a witch hunt. He conjures up “judges hostile to the administration,” an independent counsel with an axe to grind, saboteurs from previous administrations, vindictive prosecutors and “antagonistic staff,” then stops short of a romance novel before he admits that no such villains figure into the facts of the case. He describes the conditions placed on the Executive’s power of removal as “shackles,” bemoans the burdens placed upon staff who must “put aside whatever else they are doing, for an indeterminate period of time, in order to investigate . . . a particular named individual in [The President’s] administration,” and even argues that we should refrain from prosecuting the Executive branch in general because it’s too expensive.
A bipartisan group of Senators proposed The Integrity Act in 2019 because Congress had yet to create a contingency in the unforeseen circumstance that a President refuses to comply with precedent. A so-called “amendment” to The Integrity Act, proposed by Senators Cornyn (R-TX), Hatch (R-UT) and Lee (R-UT), strikes out the body of the bill and replaces it with an obsequious admission of “executive authority” founded on the falsehood that “Justice Scalia’s opinion in Morrison is today widely considered to be the law of the land across the political spectrum.” The amendment is a slap in the face to anyone who believes in the constitutional validity of congressional oversight.
Members of The Senate Judiciary Committee wrote The Integrity Act because Trump was going around The White House, shooting his mouth off, bragging about how he’s going to fire the prosecutor assigned to investigate him: Robert Mueller. Less than two months after the bill was drafted, Barr contacted Trump to indulge his narcissistic fantasies. In a memo written on the 8th of June, 2019, Barr tells Trump that “Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction.” “‘Conflict of interest’ laws do not, and cannot apply to the President” because they would “impermissibly ‘disempower’” him. “The President’s authority over law enforcement matters is necessarily all-ecompassing,” he continues, and “extend[s] to all matters, including those in which he had a personal stake.”
Barr’s tendency to argue semantics in lieu of law ignores the forest for the trees. He will dissect, unpack and analyze the ephemeral contents of a single word until the critical context, principal cause and genesis of the debate are forgotten. Ask any soldier, carpenter or school teacher the meaning of, “corruptly,” and you’ll get a straight answer. Ask Attorney General Barr, and he’ll bore you to tears with thinly-veiled distractions nestled in pages of sprawling, bureaucratic jargon.
The bulk of his argument is irrational, fallacious and predictable: “[The President] alone is the Executive branch. As such, he is the sole repository of all Executive powers,” and “while the President has subordinates . . . who exercise prosecutorial discretion on his behalf, they are merely ‘his hand.’” If we were to collectively endorse such twisted illogic, then we would also have to deny The Presidency to anyone born without a penis, and who doesn’t identify as a man. Article Two of The Constitution uniformly refers to The President as, “He,” “His,” and “Him.” Even if The Constitution vested all executive power in the President, and it doesn’t, The American People would expect government to amend itself precisely because the “unitary” composition of the Presidency threatens the balance of power between the separate branches, between The Feds and The States, and between The American People and their government. In his Politics, Aristotle reminds us that it’s far easier to corrupt one person than it is to corrupt many.
The many are more incorruptible than the few; they are like the greater quantity of water which is less easily corrupted than a little. The individual is liable to be overcome by anger or by some other passion, and then his judgement is necessarily perverted; but it is hardly to be supposed that a great number of persons would all get into a passion and go wrong at the same moment.
The concept of the “Unitary Executive” serves Neo-Federalists in three ways: 1) it’s the fastest route to a coup; 2) it’s an elastic and boundless, rhetorical foil that sets the stage for debate in their favor (see addendum at the end of this article); 3) Federalist, political power has always rested on the impression of executive superiority. When Neo-Federalists argue that The Constitution describes a government dominated by a President, they’re making a political and philosophical statement that the founders’ original intent was to divide power between the branches unequally, and to entrust the most easily corruptible branch with the greatest share of responsibility. Rather than offer these observations as grounds for an appeal to curb the powers of the Presidency, Neo-Federalists quote the “unitary” composition of the Executive Branch in a crusade to discredit every historical limit on executive power. As far as Attorney General Barr is concerned, there are only two viable limits on presidential power: impeachment and the vote.
First of all, under no circumstances is The President more powerful than Congress. The only authorities capable of altering the structures of government are Congress and The States. They could write The Presidency into oblivion if they so desired. We come from Nature and Nature defines the limits of our experience. Does it not follow that Congress may limit what it creates? If the creative faculty of Congress is inadequate evidence of the founder’s “original” intent, consider the explicit limits placed on The President’s powers of appointment. If The President can’t appoint an officer without the consent of The Senate, doesn’t it follow that they might also consent to that officer’s removal? Congress is also the only branch that resembles the origin of our government: The Continental Congress.
Why do the founders’ “original” intentions matter anyway? They were a bunch of bankers, monopolists and slavers. Fuck em; they’re dead.
When The White House was first notified of a novel coronavirus spreading across mainland China, Barr read a love letter to “unitary” power in a speech to The Federalist Society on November 15, 2019. In it, he described a parallel history sculpted by the Federalist tendency to manipulate the public record and pamper The Presidency. According to Barr, the men and women who fought in The Revolution didn’t risk their lives to vanquish King George The Third, who Thomas Pain described as “the greatest enemy this continent hath” in his call-to-arms, Common Sense, which is widely-recognized as the most popular book in American history. According to Barr, The American Revolution was fought to overthrow an “overweening Parliament,” and to create “a strong Executive, independent of, and coequal with, the other two branches of government.”
How does William Barr describe a “strong, independent Executive?” In his speech before The Federalist Society, he said, “If a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant.” He also wrote Donald Trump a personal letter to tell him that he’s within his legal right to obstruct or halt an investigation into any crimes he may have committed.
If the actor uses lawful means of influencing a proceeding — such as asserting an evidentiary privilege, or bringing public opinion pressure to bear on the prosecutors — then his ultimate motives are likewise irrelevant. Even if the actor is guilty of a crime and his only reason for acting is to escape justice, his use of lawful means to impede or influence a proceeding are perfectly legitimate.
Attorney General William Barr believes a police officer may detain someone because they’re African American so long as the officer tells everyone else he pulled them over for speeding. He also believes the President is within his legal right to fire a prosecutor who’s investigating him, or to intimidate and stonewall that prosecutor so long as The President has a good reason, although Barr also believes The President has no legal obligation to divulge that reason to the public. The entire notion of judicial review is an insult to Neo-Federalist sensibilities.
The Judiciary has usurped Presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or (b) by assuming direct control over realms of decision making that heretofore have been considered at the core of Presidential power.
It appears William Barr’s “strong, independent Executive” is an entity of veritably illimitable, self-ascribed power. If Alexander Hamilton and his Federalists share one trait with the likes of Antonin Scalia and William Barr, it’s their zealous pursuit of authoritarian power to protect capital. If Neo-Federalists didn’t embolden malignant narcissists like Donald Trump to safeguard the military-industrial complex, there would be no new tools of punishment for The Death Cult to deploy on working people for their own amusement. Their crimes may be counted in the bodies of innocents who’ve died from COVID19 and in the ongoing, endless, illegitimate War on Terror.
Those crimes would not have been possible in the first place if this type of thinking wasn’t already present in the most sacred halls of government a long time ago.
There’s no reason the undivided composition of the Executive branch prohibits The Legislature from enforcing “good cause” limits on The President’s removal powers. Those two ideas could be juxtaposed ass to dick in a single sentence and there would still be no relationship between them. The entire argument is a non sequitur. “Unitary Executive” means nothing. “Unitary Executive” is a vast, hollow chamber that echoes with the nefarious musings of men like Alexander Hamilton, Antonin Scalia and Bill Barr.
[This work is licensed under a creative commons attribution-sharealike 4.0 international license. Originally published in August, 2020 by Keith M. Judge in Chicago. This is a free culture license! If you like what you’ve read and would like to support the author, subscribe at Patreon or Substack!]