As a legal scholar, Eric Posner is careful not to prejudge anything about the special counsel’s investigation of President Donald Trump and his team. As he notes, we have no idea what Robert Mueller‘s team has discovered, or what it will be able to prove in court.
But the University of Chicago law professor feels it isn’t too early to come to one important conclusion.
“I do think a real flaw has been exposed,” he said in a telephone interview. “You do need to be able to remove the president if he engages in abuses. It’s too hard to do that. I would have liked it if the founders had put in a better system to deal with that.
“Our system invests people’s loyalty in the president. If the Republicans joined the Democrats to impeach Trump, it would be politically devastating for them. So they can’t do that. I think many of them probably wish they could, but they’re stuck. That’s a flaw in our system. In a few years, we’ll know how serious a flaw it is.”
The author of a dozen books and a thoughtful blog, Posner earned a master’s degree in philosophy at Yale University as well as a law degree from Harvard University. Pacific Standard checked in with him on Tuesday afternoon to get his latest thoughts on the ongoing investigation.
When we last talked in July, I asked you if the president can pardon himself, and you said, “I don’t think so, but I can’t say that with any confidence.” Has your confidence in that grown or shrunk over the past year?
I’m a little bit more skeptical about a self-pardon now. The president can sign a document that says, “I hereby pardon myself.” The real question would come up later, when somebody brought an indictment against the president, and a judge would have to decide whether to throw it out.
How a court would react would depend in part on the general political atmosphere. Legally, it could go either way. There’s simply no precedent, or anything that would give a court guidance. When that happens, judges tend to fall back on basic principles of the law—one of which is nobody is above the law.
There is no explicit immunity for the president in the Constitution. There’s good reason to think the founders would be outraged at the notion of the president pardoning himself. Now, Trump’s successor could pardon Trump, if he thought it was in the national interest to do so.
(Photo: Wikimedia Commons)
Legally, can Mueller indict Trump?
I think he can. There’s nothing in the Constitution that says the president cannot be indicted. There are a bunch of Supreme Court cases that suggest while the president has to be treated carefully when he’s being sued or prosecuted, and the prosecutors have to take his obligations and duties into account, that does not amount to blanket immunity. It just means the courts have to treat the prosecution carefully. It’s quite possible that Mueller could indict Trump, but a court would delay the trial until after Trump left office.
The major reason Mueller might not indict Trump—aside from the fact he may conclude Trump has not committed a crime—is that there is a Department of Justice opinion that the president cannot be indicted. I don’t find it very persuasive, but it is an opinion that was issued by the Office of Legal Counsel, and Mueller is required to abide by Department of Justice policy. It’d be reasonable for him to decide the proper approach would be to issue a report to Congress [rather than indict]. But I think he could indict the president if he wanted to.
Would indicting Trump be a good idea?
I don’t think it’s possible to answer that question at this point. It depends on what Mueller has found. First, he has to decide if Trump has committed a crime. Then he has to decide whether the crime is serious enough to warrant indictment. If he indicted Trump for something trivial, like not keeping proper records, that would badly damage the integrity of the Department of Justice and lead to nothing. We don’t know enough now.
Wouldn’t it make sense for him to avoid the court battle over whether the president can be indicted by indicting the people around him, and naming Trump an unindicted co-conspirator? That would put pressure on Congress to act on impeachment while bringing others to justice.
Actually, I think the question of indictment could be decided fairly quickly. It wouldn’t require the Supreme Court to weigh facts—just to make a legal judgment. The special prosecutors did name [President Richard] Nixon an unindicted co-conspirator, but doing so raises the question: “Why not indict him?”
Whatever Mueller does will be criticized. There is no clear precedent he can follow. He has to make a judgment about what’s in the public interest.
Do you have any idea what Rudy Giuliani is trying to do with his many television appearances, in which his arguments seem off-the-cuff and are sometimes contradictory?
The strategy the administration in general is taking is very clear: to undermine the integrity of the investigation. I’m not sure what Giuliani is saying advances that goal. I think Trump has been more effective at that. If Giuliani does have a plan, it’s probably to try to get people to think the legal process is not an appropriate way to resolve the issue of whether there was collusion [with Russia].
Why attack the process?
I think what Trump has to fear is the legal process mechanically grinding through the investigation and generating an outcome. The law-enforcement people are basically unbiased. They follow the rules, and follow the evidence wherever it leads. Trump probably doesn’t know everything is surrogates and subordinates have done, so he has a lot to fear.
The strategy probably is to make people believe these issues should be judged only by Congress, through the impeachment process. Trump probably thinks he has a better chance with impeachment, since there’s a Republican majority in both houses, and you need a supermajority in the Senate [to find him guilty and remove him from office]. Impeachment proceedings wouldn’t be successful unless his popularity plummeted. Right now, the greater threat to him is from the legal process.
Why doesn’t he just fire Mueller?
He’s probably thinking about what happened to Nixon. Firing [Special Counsel] Archibald Cox was the beginning of the end for him. If Trump felt desperate enough, he might risk it, but what would happen is probably not that different than what happened when Cox was fired. [Deputy Attorney General Rod] Rosenstein, if he was still there, would replace him with someone else. He wouldn’t be legally required to do so, but he wouldn’t be able to justify just letting the investigation stop. So we’d be back where we were before. The people working for Mueller would probably remain in place.
That scenario suggests the norms upholding the rule of law aren’t as fragile as they might seem.
I think they’re very powerful. If you look at authoritarians like Putin [in Russia], Erdogan [in Turkey], or Orban [in Hungary], it took them many years to consolidate their power, even with huge popular support. I can see [that Trump is doing] damage to the system, but I don’t think the prosecutors or judges are going to buckle. They’ve internalized the values of the profession.
Courts and the people who work in them respect certain principles that are not actually written down anywhere. When a court engages in constitutional interpretation, or even statutory interpretation, it will say: “The Constitution is ambiguous about this, but many of the founders were lawyers. We should assume that, when they use legal terms in the Constitution, that they are incorporating general legal principles.”
Once this process ultimately plays itself out, what are your fears regarding what comes next?
There are two possible bad outcomes. One is that we get a dictator, which I don’t think is going to happen. The other is we’ll end up with a severely weakened presidency and a polarized political system that can’t accomplish anything. That’s a serious worry. As you saw with [Barack] Obama, a powerful president with a big bureaucracy can get stuff done.
This interview has been edited for length and clarity.
