Whistleblowing on the President

A Harvard law professor makes my case better than I did.

My early-morning post, “Trump Phone Call Triggered Whistleblower Complaint,” was decidedly unpopular with the OTB readership for understandable reasons. In it, I seem to be offering a backdoor defense of a President I think is dangerous to the nation for doing something, as yet unspecified, that may well be dangerous to the nation. But what I’m actually doing is arguing that, unless the President is doing something criminal—which I concede is entirely plausible—he has an inherent right to disseminate the nation’s secrets and conduct the nation’s diplomacy as he sees fit.

Harvard constitutional law expert Jack Goldsmith, writing several hours later, makes essentially the same case via Twitter. His credentials for discussing this matter dwarf mine. And, while he’s likewise a historical Republican, he’s also very much in the #NeverTrump camp.

I’ve edited his tweet-storm for readability but haven’t otherwise changed anything.

I unfortunately lack the time to weigh in properly on the whistleblower complaint which, says the NYT, “involves a commitment that Mr. Trump made in a communication with another world leader, according to a person familiar with the complaint.” So here are too-brief reactions.

Bob Litt notes Clinton’s claim (reiterated by Obama) that the Whistleblower statute “does not constrain [the president’s] constitutional authority to review and, if appropriate, control disclosure of certain classified information to Congress.”

Unpacking the Intelligence Community Whistleblower Complaint House Intelligence Committee Chairman Adam Schiff wrote a blistering letter accusing Acting Director of National Intelligence Maguire of violating the law by withholding a whistleblower’s complaint.

As Litt also notes, Obama in a related whistleblower context preserved the right to “not disclose privileged or otherwise confidential law enforcement information.” These are standard executive branch positions over many administrations and they should control here.

More generally, it cannot be constitutional for a statute to give an NSA employee monitoring intercepts (or whatever) the authority to disclose to Congress the classified communications of POTUS with a foreign leader.
The president’s power to act in confidence is at its absolute height when he has a classified conversation with a foreign leader.

This isn’t a defense of Trump, it’s a defense of the presidency. Imagine next POTUS is one you like. That POTUS cannot conduct foreign policy if his or her controversial secret foreign policy communications can be disclosed at the determination of an intelligence employee.

Putting it brutally, Article II gives the president the authority to do, and say, and pledge, awful things in the secret conduct of U.S. foreign policy. That is a very dangerous discretion, to be sure, but has long been thought worth it on balance.

Trump has been challenging this principle, in various guises, for almost three years. He has shown time and time again the extent to which our constitutional system assumes and relies on a president with a modicum of national fidelity, and decent judgment, and reasonableness.

So what is to be done? Imagine that Trump engaged in an act of national treachery: he casually blew a source for no good reason (or a venal one), or he betrayed the nation in a Manchurian Candidate sort of way.

I don’t think there is a legal avenue to correct such a betrayal of national trust by the Chief Executive and Commander in Chief. That is one of the accommodations the Constitution makes for the benefits of a vigorous presidency who can conduct foreign policy in secret.

I endorse every bit of that. Like Goldsmith, I think this an awful situation. But I don’t see how we run our system otherwise. There’s simply no way to run the foreign policy of a country, let alone a global superpower, via the legislative branch. It requires a chief executive to, well, execute.

That we’ve elected the single most untrustworthy chief executive in the history of the Republic is problematic, indeed. But that doesn’t justify overturning the entire system.

Goldsmith suggests that, if a government employee feels strongly enough that the President is endangering the Republic, he can break the law and take his case public. That’s long been the Break The Glass In Case of Emergency option.

Kori Schake has made the more provocative case that leaks to the press and Congress ought be considered part of the normal give-and-take of forming consensus. I’m skeptical of that argument but am amenable to it, not least because she’s making it. And, after all, those of us who work for the government take our oath to the Constitution, not the President.

Regardless, I agree with Goldsmith that, in evaluating these cases, we would do well to do so through the lens of: How would I think about this if the Oval Office were occupied by a President I supported?

FILED UNDER: *FEATURED, Law and the Courts, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. dennis says:

    Good afternoon, James. I agree with you on the technicalities of the argument. I also assume that the whistleblower knows this. So, I can only conclude that Trump made a promise so egregious and compromising to U.S. natsec that he/she felt compelled to act. Also, I do not agree that Trump is exercising the duties faithfully, or even in good faith. His treachery, avarice, and bad character have no boundaries, and I’m afraid he has, once again, compromised the security of the country.

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  2. Joe says:

    I agreed with you this morning, James, and I agree with you now. One element of this particular train wreck is that the intelligence service does not include the White House. (I could shorten that sentence to say “intelligence does not include the White House,” but that would cloud my meaning with double entendre). There’s a reason we put the White House over everything in the Executive branch. But that reason assumed we put someone with discretion in charge of the White House. Yet again, that’s the fail here. Who was it who said in 2016 that Trump did not have the proper tempermant to be president? Oh yes, the prior president (and every one else with a lick of judgment, including numerous Republicans – I am looking at you, Mitch and Lyndsey).

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  3. Lit3Bolt says:

    It doesn’t matter what the President said. It’s that he, his administration, and his DOJ are cutting Congress out of foreign policy entirely. Congress still has oversight authority over the Executive, and I refuse any argument that can be summed up, reduction ad absurdium, as “The President is King. Deal with it.”

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  4. CSK says:

    @Lit3Bolt: Trump refuses to believe that he can’t run the country the way he ran his ramshackle multiply-bankrupted fiefdom for the past 50 years.

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  5. Jay L Gischer says:

    I didn’t think you were wrong earlier today, James.

    I get it, this is the worst possible situation: An untrustworthy party at the head of the government. A person whose defenders say is merely feckless, and not actually malicious or corrupt. Because that’s the best spin they can put on him.

    We need to be rid of him as soon as possible, and yet 40% of the country still thinks he’s the best.

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  6. Andy says:

    Goldsmith is exactly right.

    It’s interesting how much of a Rorschach test this is. We basically know nothing except that some unknown person in the IC was bothered enough by whatever he/she heard to file a formal complaint.

    With zero details it’s not wise to make assumptions at this point and there isn’t even enough info to speculate IMO.

    As a former member of the IC myself I can certainly envision cases where I might violate my oaths on safeguarding classified information, but such cases – at least for me – would need to be extreme and I’m fortunate that I never came remotely close to considering such a move during my career.

    Still, if someone feels that strongly about it, then the IG is the correct first step, so whoever this is is at least using the correct initial procedures.

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  7. An Interested Party says:

    It’s interesting how much of a Rorschach test this is.

    People often make judgements based on previously observed behavior…it is obvious to everyone how corrupt this president is…it isn’t a stretch at all to assign corrupt motives to anything he’s possibly done…

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  8. Guarneri says:

    @Andy:

    Exactly. But I’d go further. What’s this leaking to the press crap? And what jurisdiction does this guy have?

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  9. Scott F. says:

    @Joe:
    Per Goldsmith:

    I don’t think there is a legal avenue to correct such a betrayal of national trust by the Chief Executive and Commander in Chief.

    I believe there is a legal avenue (the formal notification to the IG was the start of that path), but the ability to correct depends on a Justice Department and the party of the President having a lower boundary for what they will accept in presidential behavior. Our system could deal with a president as corrupt as Trump, but only if AG Barr and the entirety of the GOP weren’t complicit and even enabling.

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  10. Moosebreath says:

    @Scott F.:

    “Our system could deal with a president as corrupt as Trump, but only if Barr and the entirety of the GOP weren’t complicit and even enabling.”

    +1,000. The whistleblower went through proper channels. The problem is that the proper channels are more concerned about covering the President’s butt than protecting the country’s secrets.

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  11. wr says:

    Yes, and if the president chooses to drop a nuclear bomb on San Francisco, I suppose there is nothing in the Constitution that forbids that, either. And I’m sure all the good Republican scholars will explain that the proper response is to wait until he’s destroyed the Bay Area and then commence impeachment.

    It’s really lovely to see all these scholars stroking their chins and inveighing how necessary it is to allow Trump to loot the treasury and quite possibly commit treason, because someday another president might be constrained by the same restraints we need to put on Trump.

    Me, I’m willing to live with that risk. This President has recently announced he wants to round up homeless people in California and put them in concentration camps. And our only response to this madman is to worry about how President Warren will deal with not being allowed to do the same.

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  12. JKB says:

    Hey, I wasn’t happy when the untrustworthy president, Obama, was caught trying to send a private message through the Russian president, obviously in hopes of circumventing intelligence community monitoring, asking for Putin to back off in exchange for a promise to sell out American voters after the election. In that case, it wasn’t an intelligence employee using government resources that exposed the attempt but Obama’s own error for doing it while miked.

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  13. DrDaveT says:

    @JKB:

    Hey, I wasn’t happy when the untrustworthy president, Obama, was caught trying to […]

    You know, Obsessive-Compulsive Disorder can be treated. You really should seek help.

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  14. I think that the main problem is that we all know it is possible he did something illegal that sparked the whistleblowing in question. The real problem, to me, is that the current DoJ seems to be acting more like his attorneys that the nation’s.

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  15. Teve says:

    @DrDaveT: sadly, Angry Racist Asshole Disorder is generally incurable. 🙁

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  16. Raoul says:

    So what do we do if Trump conditioned the release of Ukrainian foreign aid for them investigating the Bidens. That is of course is blatantly illegal. It’s funny how Giuliani is in the middle of this as he was when Comey reopened the email investigation. It is sad that someone who gained his reputation fighting crime may well be a criminal now.

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  17. Teve says:

    @Raoul: this timeline of circumstances is interesting:

    FallOfContext
    @ContextFall
    ·
    18h
    7/31: Trump call with Putin
    8/8: Dan Coates and Sue Gordon out at DNI
    8/12: #Whistleblower goes to ICIG
    8/28: Trump pauses military aid to Ukraine
    9/12: ICIG tells Schiff about WB
    9/12: Trump reinstates aid for Ukraine after Schiff requests WB report
    9/13: Schiff goes public

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  18. steve says:

    I think that few presidents come into office knowing how to avoid accidentally giving away security information. I suspect that over the years the people monitoring POTUS conversations must have heard quite a few mistakes, but it didnt AFAICT trigger whistleblowing to the IG. I wouldn’t speculate about the content of what was said, but I would speculate that it must have been pretty unusual to result in reporting it to the IG. This will probably end that person’s career.

    Steve

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  19. Steve V says:

    The expected responses:

    1) Obama did something just as dastardly

    2) It was Hillary who colluded with Ukraine, not Trump

    3) President can do anything he wants and it’s a scandal that anyone would dare leak this information.

    Anything else?

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  20. Lit3Bolt says:

    So, James Joyner ends up with egg on his face for defending the indefensible from a Queens Mob Boss. News at 11.

    So Dr. Joyner, I’m sure you agree that Bernie Sanders and Elizabeth Warren can solicit aid from China to help their campaigns against Trump? OH WAIT, they’re not President, so no Unitary Executive Theory, cough, cough, MONARCHISM, to shield them from every and all laws in the United States. And of course the duty of every DOJ lawyer and intelligence officer is to protect and shield the President? Even when he engages in a quid pro quo with foreigners to help his reelection? Of course.

    What a farce.

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  21. Teve says:

    @Steve V: 4) there’s Nothing Illegal about witholding aid money until a country smears your opponent.

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  22. gVOR08 says:

    In the New York State subpoena of Trump’s records from his accounting firm Trumpsky’s lawyers are arguing that not only can the DOJ not indict the President* for federal crimes, no one can, even for state crimes, nor even investigate him. I’ve been expecting Trump or Barr to go here. But is this where you want the country to go, James? To make it official that the president really is above the law? Rule of law is necessary for small d democracy. Do we want to kiss that off?

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  23. Modulo Myself says:

    Love how the ‘good’ conservatives are saying the great thing about the Constitution is that it allows you to be the guy who is just following orders. The 20th century never happened, and certainly not Nazi Germany. There’s no reason to be suspicious of systems. Anyway, Big Government is dangerous because it might regulate pollution and carbon emissions. That’s the real evil.

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  24. gVOR08 says:

    @Teve: Actually, I’m not sure it is illegal to make military aid a quid pro quo for political help. Obviously it should be, but aside from campaign finance laws I don’t see what the criminal charge would be. Lawyers?

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  25. Guarneri says:

    As the contours of this come out it looks more than anything else that somebody wants to put a fork in Biden. He’s the guy who is going to get slaughtered here. A billion and a half from China for his PE investor (snicker) son. Threatening Ukraine to fire prosecutors.

    Joltin’ Joe took care of Corn Pop. Then the Ukraine. I wonder if he took down Cap’n Crunch. Well, Lizzy, Bernie or even the DNC might be behind this one.

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  26. inhumans99 says:

    @Guarneri:

    Dude (dudette)…are you feeling well, you are talking gibberish son.

    Wiggle waggle gaggle. There, my post just made as much sense as yours, that is to say, none at all.

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  27. dennis says:

    @Scott F.:

    Our system could deal with a president as corrupt as Trump, but only if AG Barr and the entirety of the GOP weren’t complicit and even enabling.

    All of this right here.

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  28. dennis says:

    @Modulo Myself:

    There’s no reason to be suspicious of systems.

    Ohh. Ooh.

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  29. Gustopher says:

    Regardless, I agree with Goldsmith that, in evaluating these cases, we would do well to do so through the lens of: How would I think about this if the Oval Office were occupied by a President I supported?

    Whistleblower goes to the IG, IG says the complaint is urgent and credible… I’d want the intelligence committees informed.

    Plain and simple. I don’t care who the president is. Maybe the intelligence committee decides the IG was wrong and the whistleblower was a weenie. Maybe the intelligence committee sends someone over to explain to the President how to use the mute button on the telephone. Maybe it leads to impeachment because it’s treason.

    This isn’t a hard call.

    And ensuring the whistleblower is listened to, and hopefully responded to, means the whistleblower doesn’t feel like she has to leak everything to the press. It protects classified information.

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  30. Ken_L says:

    If a president I supported were found to have threatened to withhold military aid approved by Congress unless another country helped his or her re-election campaign, s/he would no longer be a president I supported. The only way we can know if that is what this whistleblower has reported is for Congress to review the report.

    If Trump did promise such a deal, it would surely amount to a ‘high crime or misdemeanor’ under the constitution, which we know is the only kind the DoJ believes a sitting president can be charged with.

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  31. michael reynolds says:

    Trump is a whore. This is not news. Wave a stack of bills under his nose and he’ll follow you anywhere. Corrupt? Obviously. He will go down in history as the most corrupt president in US history. A traitor? Obviously. Whores are like that, their loyalty is for sale. Trump works for Putin, Trump works for MBS. Give him a shot at another vanity tower and he’ll work for you, too.

    You know @Guarneri and @JKB, the truth will come out once this piece of garbage is out of office. You know that, right? And the two of you will be exposed as the dishonest, treasonous, hate-fueled scum you are.

    Trump is exactly what I’ve said for the last three years: a pathological liar, a criminal, a bribe taker and a traitor. And the trolls know it. They know their tin god is a whore, and they don’t care because they don’t care about this country.

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  32. rachel says:

    @DrDaveT: “You can’t fix stupid” -Ron White

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  33. Gustopher says:

    Based on the WaPo story last night, it seems this has to do with Ukraine.

    I expect the whistleblower or others to drop tiny leaks publicly until this gets released to the intelligence committees. Perhaps not the best way to handle classified data, but if appropriate channels are closed off, what would anyone expect to happen?

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  34. James Joyner says:

    @wr:

    Yes, and if the president chooses to drop a nuclear bomb on San Francisco, I suppose there is nothing in the Constitution that forbids that, either.

    and

    @gVOR08:

    Rule of law is necessary for small d democracy. Do we want to kiss that off?

    and

    @Lit3Bolt:

    So Dr. Joyner, I’m sure you agree that Bernie Sanders and Elizabeth Warren can solicit aid from China to help their campaigns against Trump?

    IANAL but dropping a nuke on an American city would surely be an illegal order that a slew of military officers would rightly ignore. Absent Vice President Pence triggering the 25th Amendment, it might even lead to a soft coup.

    Soliciting foreign aid would be illegal, as was Trump’s solicitation of aid from Russia during the 2016 campaign.

    It has long been the position of the Justice Department, and a reasonable one Constitutionally, that a sitting President can’t be prosecuted by the Justice Department. Which means the only Constitutional option for dealing with such malfeasance is the impeachment process. Which Nancy Pelosi has, correctly in my judgment, decided will do more damage than good given the inevitability of the Republican Senate exonerating him.

    Now, I agree with those above who have stated (as I did in the previous post on this matter) that the Attorney General and Director of National Intelligence have an obligation to the Constitution that supersedes their political loyalty to the President. Unfortunately, Barr in particular has given us reason to doubt he sees it that way. But our system isn’t built to stop multiple untrustworthy people atop the chain of command. And it especially wasn’t designed to deal with an untrustworthy President being backed by members of his political party in the Congress.

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  35. Jon says:

    Regardless, I agree with Goldsmith that, in evaluating these cases, we would do well to do so through the lens of: How would I think about this if the Oval Office were occupied by a President I supported?

    I believe that is handy bit of moving the goalposts. Instead of discussing the actual impropriety at hand, you’re changing the conversation into one about partisanship.

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  36. Jen says:

    @James Joyner:

    Which Nancy Pelosi has, correctly in my judgment, decided will do more damage than good given the inevitability of the Republican Senate exonerating him.

    This, in my mind, is now one of the most if not THE most egregious elements of what is before us. If Trump did in fact solicit help from, and threaten to withhold Congressionally-approved aid from, Ukraine in exchange for political help in getting reelected, honest Republicans (snicker, at this point) should put country over party.

    They won’t.

    And that, in a nutshell, is where the current Republican Party stands. Up to their belly buttons in manure, insisting that they can’t smell anything.

    If this all holds to be true, and they do nothing, the Republican Party should go the way of the dodo.

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  37. Just nutha ignint cracker says:

    @michael reynolds:

    You know @Guarneri and @JKB, the truth will come out once this piece of garbage is out of office. You know that, right? And the two of you will be exposed as the dishonest, treasonous, hate-fueled scum you are.

    Well… okay, but remember by the time that happens, we’ll all be dead and nobody will care what we thought. In the meantime, Guarneri and JBK have gotten the money and nobody knows who they are anyway. (And I’ll bet neither one is noteworthy enough in their real life that anybody gives a fwck/would be surprised to find out that they were a$$holes anyway. It’s one of the drawbacks to this whole virtual life thang.)

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  38. Teve says:

    @Just nutha ignint cracker: then they’ll just do what 95 South did and pick a new troll name. Voila! Past Erased.

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  39. Kit says:

    @James Joyner:

    IANAL but dropping a nuke on an American city would surely be an illegal order that a slew of military officers would rightly ignore. Absent Vice President Pence triggering the 25th Amendment, it might even lead to a soft coup.

    This is frightening. You admit that the only avenue to dealing with a president who slaughters his own people is either for his #2 to act, or for the military to step in. And you’re ok with that. So ultimately, we all live and breath at the pleasure of the president. When did the high ideals of freedom transform into this?

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  40. KM says:

    @James Joyner:

    IANAL but dropping a nuke on an American city would surely be an illegal order that a slew of military officers would rightly ignore

    Here’s the million dollar question James – how can you be sure of that anymore?

    Granted, nuking is an extreme example since most normal people tend to have an aversion to mass murder. Normal people hear that crap and start thinking how to restrain the nutcase giving the order. However, we’re not seeing normal anymore – you can’t keep falling back on an assumption that has no foundation. Expecting people to find their conscience at the last second to prevent disaster is *asking* for it. Frankly, all it takes is one or two MAGAts to decide he’s right and boom, there goes the neighborhood. If the order ever came, I would expect a high percentage to disobey and then immediately need to deal with the ones figuring out coordinates. What’s going to be shockingly depressing (should they managed to be stopped) is just how many *didn’t* choose to be decent people and do the right thing – 27% at least.

    Let’s go with something less deadly then – rounding up people because of an Executive Order. Start filling the camps. Gather up the troublemakers, the “criminals”. Maybe they’re illegals, maybe they’re Americans – does it matter? Either way – they’re now the “enemy”, they’ve “broken the law” and now need to be sent away. Do you say no? Do you disobey the order despite it’s questionable ethics and legality? Would you trust a stacked court or legislature to do the right thing or would it side with the corrupt leader? Well, based on what’s happening right now not only would they say “hell, yes” they’d be making a profit off imprisoning people they don’t like.

    The way Republicans are falling all over themselves to protect, cover, justify and straight up accept criminal actions by this President is horrifying. It’s no comfort to hear “well, they’re *probably* stop him if he tries to do X” because they haven’t really tried so far. All available evidence has them not only accepting but actively aiding and abetting with the line in the sand too far out of sight to matter. By the time we get to the worst case scenario and they have to make their choice, they’ve already ridden that destructive train to the end of the line. Does it matter if they get off at the last stop for their own selfish moral reasons?

    We trust that there are people surrounding the President who can protect the nation – especially from him if he ends up being the threat. We trust that there are decent folk who will play the hero and stand up for what’s right. Either by saying no to a stupid idea before it happens, persuading him to change his bad choice or to flat out mutiny when it matters – where are those people and how sure is that faith now? It’s a tragedy that we even have to ask this but…. here we are.

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  41. James Joyner says:

    @Jon:

    Instead of discussing the actual impropriety at hand, you’re changing the conversation into one about partisanship.

    At the time I wrote the post, I knew essentially nothing about the actual impropriety. The post is about institutions and their permanent nature.

    To the extent partisanship is an issue here, it’s 87% on the Republican side. In a normal adminisration of either party, we’d expect that this ruling from the AG was strongly grounded in the law, even if it was shaded with the presumption the President should prevail. Further, we’ve historically expected Senators and Representatives from the President’s party to stand up for the Constitution and the perquisites of the Congress. None of that is happening now.

    My closing comment, echoing Goldsmith, isn’t so much about party as about Trump. I’d have made the same argument under George W. Bush, who I voted for and liked, but also under Obama, who I came to like but didn’t vote for. I neither voted for nor like Trump and the case for deference is harder to make given his history. But I’m cautioning that we need to make rules that last beyond Trump.

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  42. gVOR08 says:

    This revolves, I think, around one’s view of the threat. If one views the threat as China, Russia, the Caliphate, immigrants, poor people who are coming for my stuff, or whatever, then a strong president, the strong version of the Unitary Executive, looks pretty good. (Noting the irony that somehow Russia seems to be off the threat list.) If one views the threat as autocracy, kleptocracy, white nationalism, corruption, and incompetence, then a strong president looks threatening.

    The Trumpskyites are not wrong to hate our elites. Our elites have, since maybe Vietnam, brought us failed wars, financial system failures, economic failures, and a refusal to address obvious problems. The Trumpskyites are just wrong in their understanding of what and who the elites are and how they work and settled on an insane notion that electing a corrupt billionaire was a solution.

    Paraphrasing Brandeis, we can have a strong executive or we can have democracy. We cannot have both.

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  43. KM says:

    @Kit:

    So ultimately, we all live and breath at the pleasure of the president.

    Dictator, king, president, lord and master…. they all mean the same thing, right? The guy who owns your ass and gets to do what he wants to it. Plus ça change…..

    I know it’s a cliche that conservatives tend to favor authoritarianism as an approach to life but damn, it still hits you hard to see an intelligent person basically state the shit has to be at impact point before direct challenge to authority is acceptable. The 25th is a ranged weapon, not melee. You use it to take out the threat BEFORE disaster strikes, not-mid crisis. It’s purpose it to make sure the OP scenario doesn’t occur by removing a defective leader from a position of power. Yes, it’s a complete disruption of our political system. Yes, it upends tradition and creates problems of it’s own. Yes, it’s a last resort option and not a go-to for getting rid of unpopular leaders. However, it’s part of our Constitution for a reason and there’s no point to an emergency breaking system if you activate it 2ft from the wall.

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  44. @James Joyner:

    But I’m cautioning that we need to make rules that last beyond Trump.

    I agree with this basic sentiment, and understand the position you and Goldsmith are making (and I agree with that position to a point).

    However, at this stage I think that the point is very much about the rules beyond Trump, but not necessarily in the way you are describing. You are assuming a return to normalcy after Trump. I think we have to start thinking about rules that will constrain the next Trump, as I fear that we cannot rule out the possibility that not only will we get another Trump, the next one may well know what s/he is doing and be even more dangerous than the current iteration.

    This situation is a warning that the rules regime that Goldsmith describes has some dangerous holes in it.

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  45. gVOR08 says:

    @Steven L. Taylor:

    we cannot rule out the possibility that not only will we get another Trump, the next one may well know what s/he is doing and be even more dangerous than the current iteration.
    This situation is a warning that the rules regime that Goldsmith describes has some dangerous holes in it.

    Well put. Let’s not think about how things might work under an Obama or Hillary or W and how we‘d feel about it. Think about President Ted Cruz or President Rick Scott, asshats, and very good at it.

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  46. @gVOR08:

    Think about President Ted Cruz or President Rick Scott

    TBH, I think even a President Cruz or Scott would be more normal than Trump (not that I want either, but would honestly trade Trump for Cruz right now).

    I am talking about truly another disruptive populist with authoritarian tendencies.

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  47. Lit3Bolt says:

    @Steven L. Taylor:

    This is what nettles me. I’m way too hard on James, but the position that “The President can betray his oath to the Constitution at whim, LOL, and there’s no legal recourse” is bunk. That kind of permissiveness leads everyone under his command to doing the same as him.

    Oaths to the Constitution are not just binding to intelligence operatives, while the President is free of any constraint. And I know our history is littered with examples of foreign backroom deals to help Presidents with elections or reelections.

    The most disturbing thing is the precedent being set by this obvious and flagrant corruption. It’s the equivalent of a bandito spray painting “Y Que?” on the Constitution.

    It means something or it doesn’t.

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  48. Kit says:

    In a future post, I’d like to see OTB start kicking around what all this might mean with regard to the upcoming election. If the President cannot be constrained, if Republicans are ready to applaud law breaking as long as it benefits Team Red, and if conservative intellectuals can offer nothing more than beard stroking and tut tutting, are there any safeguards at all?

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  49. Scott F. says:

    @Steven L. Taylor:
    How about President Elizabeth Cheney? The GOP is grooming her for a leading role and she’s already shown she has her father’s affinity for authoritarianism.

    Imagine someone smart and cunning using the new rules Trump has set up for himself and the fact-free zone he’s created on the right?

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  50. Andy says:

    @Steven L. Taylor:

    This is an extremely important point.

    The sad reality is that outside of the libertarian right and a few voices on the left, no one is actually interested in reigning-in Executive power.

    And, increasingly, the concept of federalism is also under attack in service of partisan expediency. Federalism is another important check on Executive and also federal authority.

    Congress continues to ignore or delegate power to the executive for a multitude of reasons, giving whoever is President wide latitude to push the envelope. And our highly factional Congress, unable to hammer out compromise legislation, leaves the field open to the Executive to fill in the vaccuum. And partisans cheer when it’s their President doing it.

    And now the judiciary is under assault with both factions seeking to skew that branch to support their particular preferences. The continuous tit-for-tat escalations will quite obviously and inevitably destroy the legitimacy of the judiciary, but few seem to actually care.

    So I’m pessimistic that much will change because, in my view, the majority of political actors and power-brokers in this country (along with their ardent factional supporters) seem perfectly willing and eager to put goals over the process regardless of the long-term costs and implications.

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  51. reid says:

    @Steven L. Taylor: Yes, yes, yes. We’ve had a long string of relatively decent leaders, people who at least respected our institutions. We’ve gotten complacent. Trump should be a wake-up call that the system needs changes.

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  52. Barry says:

    @gVOR08: “Actually, I’m not sure it is illegal to make military aid a quid pro quo for political help. Obviously it should be, but aside from campaign finance laws I don’t see what the criminal charge would be. Lawyers?”

    IANAL, but bribery, use of government money for partisan campaigning.

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  53. Barry says:

    James and Jack: “Regardless, I agree with Goldsmith that, in evaluating these cases, we would do well to do so through the lens of: How would I think about this if the Oval Office were occupied by a President I supported?”

    As has already been pointed out, we’d like the system to work properly, first and foremost.

    Frankly, I’ve suspected Jack (and you, James) of being a ‘unitary theory of the executive’ guy, deep down.

    It’s part of the national security state thinking – if we don’t have a king, who will protect us?

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  54. Jon says:

    @James Joyner: Thank you for the thoughtful response. I guess my ultimate point, which I should have made explicit, is that “How would I think about this if the Oval Office were occupied by a President I supported?” smuggles in the assumption that people are outraged about this purely for partisan reasons. But that should not be (and hopefully is not, for most people) why anybody is disturbed by this affair. Turning the foreign policy of the United States into a campaign tool should bother all of us, irrespective of political persuasion.

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  55. Teve says:

    Could you get right wing christian nutjobs to go along with bombing an American city? Of course you fucking could.

    State Dept. Decries Robertson Nuke Quote

    October 12, 2003
    VIRGINIA BEACH, Va. (AP) _ The U.S. State Department has condemned an on-air suggestion by religious broadcaster Pat Robertson that the agency ought to be blown up with a nuclear device.

    Robertson, who heads the Virginia Beach-based Christian Broadcasting Network, made the remark while interviewing author Joel Mowbray on “The 700 Club″ television program last week. Mowbray wrote a book called “Dangerous Diplomacy: How the State Department Endangers America’s Security.″

    “I read your book. When you get through, you say, ‘If I could just get a nuclear device inside Foggy Bottom, I think that’s the answer.’ I mean, you get through this, and you say, ’We’ve got to blow that thing up,‴ Robertson said during the interview.

    The State Department’s headquarters are located in Foggy Bottom, a Washington neighborhood.

    Richard Boucher, the agency’s top spokesman, called the remark Thursday “despicable.″

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  56. Just nutha ignint cracker says:

    @Teve: If you could get someone to pay you even $10/hr for documenting every stupid thing that Pat Robertson says on the 700 Club, you’d have enough hours available to make $80 or 90k an year.

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  57. dazedandconfused says:

    Echoing Gustopher’s comment earlier in the thread. The legal analysis seems to be skipping over the existence of our Select Intell committees, which were established for this sort of situation.

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  58. Teve says:

    @Just nutha ignint cracker: ditto for Kat Kerr, and Jim Bakker, and Jesse Lee Peterson, and so on. But it’s not the fact that each one of those people has roughly the same IQ as a shar pei that was hit in the head by a small school bus, the worrisome thing is that these are successful media figures on the Right. Tens of thousands of people tune in to listen to their opinions. Legions of morons. That’s the scary part.

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  59. gVOR08 says:

    Speaking of the Unitary Executive, LGM has a post by Scott Lemieux has a post on Trump’s suit to be allowed to fire the head of the Consumer Financial Protection Bureau. On it’s face it’s about neutering an agency the banksters find inconvenient. The implications are deeper. They are trying to bring any independent agency under the Unitary Executive, potentially even the Fed.

    I do not believe for one moment Trump came up with this ploy. The inclination to autarky goes a lot deeper.

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  60. Lit3Bolt says:

    @gVOR08:

    That’s all Unitary Executive Theory is, a special plea for The Great Chain of Being with any (Republican) President-God-King at the helm.

    The President can kill anyone, rape anyone, be as corrupt as he pleases, and people like James and Rick Wilson and Tom Nichols blame the Democrats for being bad at politics with 50 Republican Senators and 5 Supreme Court Justices and 1 Traitor-King-President standing in their way. Not to mention the corporate media and big business Federalist Society and 40% of the country lusting for the culture war to become Civil War II: Election Bugaloo.

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  61. An Interested Party says:

    So I’m pessimistic that much will change because, in my view, the majority of political actors and power-brokers in this country (along with their ardent factional supporters) seem perfectly willing and eager to put goals over the process regardless of the long-term costs and implications.

    Indeed…in the House, Pelosi is far too timid and worried about how it will be perceived to begin the process of impeaching an obviously corrupt president, and McConnell in the Senate is far more interested in keeping his power than he would ever be to continue the impeachment process in the Senate…

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  62. de stijl says:

    Joyner’s model only holds if a Republican President is the national security threat in the oval office.

    Switch that R to a D. Would his response be “abide by the process”?

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  63. @de stijl:

    Switch that R to a D. Would his response be “abide by the process”?

    Actually, yes, I think his response would have been the same.

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