Tag Archives: Elizabeth Price Foley

The Senate Knows Enough to Acquit Trump

By David B. Rivkin, Jr., and Elizabeth Price Foley

5 January 2020 in the Wall Street Journal

Give Nancy Pelosi this: She has chutzpah. Senate Majority Leader Mitch McConnell responded Friday on the Senate floor to the House’s refusal to appoint managers and transmit its articles of impeachment against President Trump to the upper chamber. “For now,” Mr. McConnell said, “we are content to continue the ordinary business of the Senate while House Democrats continue to flounder. For now.”

Mrs. Pelosi’s response: “The GOP Senate must immediately proceed in a manner worthy of the Constitution.” Never mind that the hold-up is at her end.

Yet now that Mr. Trump has been impeached, the Senate is constitutionally obliged to address the matter. Neither Mrs. Pelosi’s intransigence nor Senate rules, dating from 1868, that peg the commencement of an impeachment trial to the House’s appointment of impeachment “managers” justify an indefinite delay.

As Mr. McConnell noted, the Constitution’s Framers emphasized the importance of a speedy trial in cases of impeachment. “The procrastinated determination of the charges,” Alexander Hamilton wrote in Federalist No. 65, would do “injury to the innocent,” work to “the advantage of the guilty,” and sometimes do “detriment to the state, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House.”

Mrs. Pelosi is holding the impeachment articles hostage, she says, to ensure that the Senate holds what she regards as a “fair” trial. Her central demand is that the Senate permit House managers to call witnesses the House didn’t hear from before impeaching the president. Putting aside the rank hypocrisy of this demand, the Constitution provides that “the Senate shall have the sole power to try all impeachments.” The House has no say in how the trial is conducted.

Mr. McConnell appears to believe it is to his advantage to let Mrs. Pelosi fumble about “for now.” But the Constitution obliges the Senate to act at some point. If the House does not relent, the Senate has two options. It could take the position that because the House bears the normal prosecutorial burden of production and persuasion, Mrs. Pelosi’s refusal to engage with the Senate requires the summary dismissal of the articles. Alternatively, the Senate could take a page from the judiciary’s handbook and appoint outside counsel as managers to make the House’s case against Mr. Trump.

If managers are appointed by either the House or the Senate, the Senate should not conduct a trial on the facts. Instead it should dismiss the articles as a matter of law. The House has alleged no impeachable offense, and therefore no evidence can convict Mr. Trump.

The first article charges the president with “abuse of power” in his dealings with Ukrainian President Volodymyr Zelensky. There are two ways a president can abuse power: by doing something that exceeds his constitutional authority (such as unilaterally imposing a tax) or by failing to carry out a constitutional obligation (refusing to enforce a law). Neither is applicable here.

Mr. Trump had ample constitutional authority to ask Mr. Zelensky to investigate Ukrainian involvement in the alleged Democratic National Committee server hack, the related genesis of the Russia collusion narrative, and Joe and Hunter Biden’s potentially corrupt dealings in Ukraine. The Supreme Court stated in U.S. v. Curtiss-Wright Export Corp. (1936) that the president is the “sole organ of the federal government in the field of international relations,” with exclusive authority to conduct diplomatic relations.

House Democrats don’t dispute this, or claim Mr. Trump’s actions were illegal in themselves. Rather, they allege that he had “corrupt motives” for doing them.

The “corrupt motives” theory is inherently corrosive of democracy. Motives are often mixed, difficult to discern and, like beauty, generally in the eyes of the beholder—which in this case sees through partisan lenses. To Democrats, the transcript of the Trump-Zelensky call demonstrate the desire to harm Democrats; to Republicans, a desire to root out corruption.

Any investigation involving governmental malfeasance can damage the president’s political rivals or benefit allies. But the president has a constitutional duty to “take care that the laws be faithfully executed,” even if his political opponents may be violating them. To bar investigations of the president’s political opponents would effectively hand them a get-out-of-jail-free card and traduce the rule of law. And virtually everything elected officials do serves political ends. If a president’s pursuit of his political interests is impeachable, every president is removable at Congress’s whim.

The House Democrats’ theory will encourage impeachment whenever a President exercises his constitutional authority in a manner offensive to the party controlling the House. The Framers vehemently opposed impeachment for policy disagreements, as legal scholar Michael Gerhardt noted during President Clinton’s impeachment inquiry in 1998. He told the House Judiciary Committee that “one of the most often repeated pronouncements of the framers” was “that impeachment is not designed to address policy differences or opinion.” He referred the committee an “excellent study” by Peter Hoffer and N.E.H. Hull, which warned that “impeachable offenses are not simply political acts obnoxious to the government’s ruling faction.”

The second impeachment article charges Mr. Trump with “obstruction of Congress” for asserting executive privilege in response to subpoenas. But impeachment doesn’t abolish the separation of powers The president has ample constitutional basis to resist congressional demands of documentary and testimonial evidence, particularly when it involves his White House advisers and sensitive national-security issues. This article is not only legally baseless but outrageous, since the House didn’t bother asking a judge to compel White House aides to testify. Instead, Mrs. Pelosi insists Mr. McConnell make it happen.

The Senate must stop the madness. If the House chooses not to pursue its case, the Senate has the authority and the duty to move forward and acquit the president without hearing additional evidence. Both with respect to the timing of the impeachment trial and the actual trial procedures, the Senate must fulfill its constitutional duty as the ultimate check on the House majority’s partisan passions and abuse of its impeachment power.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: https://www.wsj.com/articles/the-senate-knows-enough-to-acquit-trump-11578262402

This Impeachment Subverts the Constitution

By David B. Rivkin, Jr., and Elizabeth Price Foley

October 25, 2019, in the Wall Street Journal

Speaker Nancy Pelosi has directed committees investigating President Trump to “proceed under that umbrella of impeachment inquiry,” but the House has never authorized such an inquiry. Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense. Lawmakers and commentators have suggested various possibilities, but none amount to an impeachable offense. The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.

The impeachment power is quasi-judicial and differs fundamentally from Congress’s legislative authority. The Constitution assigns “the sole power of impeachment” to the House—the full chamber, which acts by majority vote, not by a press conference called by the Speaker. Once the House begins an impeachment inquiry, it may refer the matter to a committee to gather evidence with the aid of subpoenas. Such a process ensures the House’s political accountability, which is the key check on the use of impeachment power.

The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.

Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.

Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. The executive is also a coequal branch of government. Thus any attempt to remove the president by impeachment creates unique risks to democracy not present in any other impeachment context. Adhering to constitutional text, tradition and basic procedural guarantees of fairness is critical. These processes are indispensable bulwarks against abuse of the impeachment power, designed to preserve the separation of powers by preventing Congress from improperly removing an elected president.

House Democrats have discarded the Constitution, tradition and basic fairness merely because they hate Mr. Trump. Because the House has not properly begun impeachment proceedings, the president has no obligation to cooperate. The courts also should not enforce any purportedly impeachment-related document requests from the House. (A federal district judge held Friday that the Judiciary Committee is engaged in an impeachment inquiry and therefore must see grand-jury materials from special counsel Robert Mueller’s investigation, but that ruling will likely be overturned on appeal.) And the House cannot cure this problem simply by voting on articles of impeachment at the end of a flawed process.

The Senate’s power—and obligation—to “try all impeachments” presupposes that the House has followed a proper impeachment process and that it has assembled a reliable evidentiary basis to support its accusations. The House has conspicuously failed to do so. Fifty Republican senators have endorsed a resolution sponsored by Judiciary Committee Chairman Lindsey Graham urging the House to “vote to open a formal impeachment inquiry and provide President Trump with fundamental constitutional protections” before proceeding further. If the House fails to heed this call immediately, the Senate would be fully justified in summarily rejecting articles produced by the Pelosi-Schiff inquiry on grounds that without a lawful impeachment in the House, it has no jurisdiction to proceed.

The effort has another problem: There is no evidence on the public record that Mr. Trump has committed an impeachable offense. The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” The Founders considered allowing impeachment on the broader grounds of “maladministration,” “neglect of duty” and “mal-practice,” but they rejected these reasons for fear of giving too much power to Congress. The phrase “high crimes and misdemeanors” includes abuses of power that do not constitute violations of criminal statutes. But its scope is limited.

Abuse of power encompasses two distinct types of behavior. First, the president can abuse his power by purporting to exercise authority not given to him by the Constitution or properly delegated by Congress—say, by imposing a new tax without congressional approval or establishing a presidential “court” to punish his opponents. Second, the president can abuse power by failing to carry out a constitutional duty—such as systematically refusing to enforce laws he disfavors. The president cannot legitimately be impeached for lawfully exercising his constitutional power.

Applying these standards to the behavior triggering current calls for impeachment, it is apparent that Mr. Trump has neither committed a crime nor abused his power. One theory is that by asking Ukrainian President Volodymyr Zelensky to investigate Kyiv’s involvement in the 2016 U.S. presidential election and potential corruption by Joe Biden and his son Hunter was unlawful “interference with an election.” There is no such crime in the federal criminal code (the same is true of “collusion”). Election-related offenses involve specific actions such as voting by aliens, fraudulent voting, buying votes and interfering with access to the polls. None of these apply here.

Nor would asking Ukraine to investigate a political rival violate campaign-finance laws, because receiving information from Ukraine did not constitute a prohibited foreign contribution. The Mueller report noted that no court has ever concluded that information is a “thing of value,” and the Justice Department has concluded that it is not. Such an interpretation would raise serious First Amendment concerns.

Equally untenable is the argument that Mr. Trump committed bribery. Federal bribery statutes require proof of a corrupt intent in the form of a quid pro quo—defined by the Supreme Court in U.S. v. Sun-Diamond Growers (1999), as a “specific intent to give or receive something of value in exchange for an official act.” There was no quid pro quo in the call. Mr. Zelensky has said he felt no pressure, and the purported quid (military aid to Ukraine) was not contingent on the alleged quo (opening an investigation), because the former materialized within weeks, while the latter—not “something of value” in any case—never did.

More fundamentally, the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds. Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities.

Thomas Jefferson impounded funds appropriated for gunboat purchases, Dwight Eisenhower impounded funds for antiballistic-missile production, John F. Kennedy impounded money for the B-70 bomber, and Richard Nixon impounded billions for highways and urban programs. Congress attempted to curtail this power with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.

Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it. Lyndon B. Johnson used the promise of financial aid to strong-arm the Philippines, Thailand and South Korea to send troops to Vietnam. The General Accounting Office (now called the Government Accountability Office) concluded that this constituted “quid pro quo assistance.” In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counterterrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.

Further, there is credible evidence that Ukraine interfered in the 2016 presidential election at the request of senior Obama administration officials. The Justice Department is investigating this as part of its broader inquiry—now a criminal investigation—into efforts to target the Trump campaign in 2016 and beyond. It is certainly legitimate for the president to ask Ukraine to cooperate.

In addition, the president’s constitutional duty to “take care that the laws be faithfully executed” implies broad discretion to investigate and prosecute crimes, even if they involve his political rivals. Investigating Americans or Ukrainians who might have violated domestic or foreign law—and seeking the assistance of other nations with such probes, pursuant to mutual legal-assistance treaties—cannot form a legitimate basis for impeachment of a president.

It’s legally irrelevant that a criminal investigation may be politically beneficial to the president. Virtually all exercises of constitutional discretion by a president affect his political interests. It would be absurd to suggest that a president’s pursuit of arms-control agreements, trade deals or climate treaties are impeachable offenses because they benefit the president or his party in an upcoming election.

Using a private party such as Rudy Giuliani to carry out diplomatic missions is neither a crime nor an abuse of power. While the State Department’s mandarins have always lamented intrusions on their bureaucratic turf, numerous U.S. presidents have tapped people to conduct foreign-policy initiatives whose job—whether in the government or private sectors—did not include foreign-policy experience or responsibility. George Washington sent Chief Justice John Jay to negotiate the “Jay Treaty” with Britain. Woodrow Wilson used American journalist Lincoln Steffens and Swedish Communist Karl Kilbom as special envoys to negotiate diplomatic relations with the Soviet Union. A close Wilson friend, Edward House, held no office but effectively served as chief U.S. negotiator at the Paris Peace Conference after World War I.

Nor is it illegal or abusive to give a diplomatic assignment to a government official whose formal institutional responsibilities do not include foreign affairs, such as the energy secretary. JFK relied on Attorney General Robert F. Kennedy to negotiate with Moscow during the Cuban missile crisis.

Although the impeachment inquiry has been conducted in secret, what we know suggests it has become a free-ranging exploration of Mr. Trump’s foreign-policy substance and process, with the committees summoning numerous State Department witnesses. Congress could properly undertake such an inquiry using its oversight authority, but by claiming that it is proceeding with an impeachment inquiry, it has forfeited this option.

If the House impeaches Mr. Trump because it disapproves of a lawful exercise of his presidential authority, it will in effect have accused him of maladministration. The Framers rejected that amorphous concept because it would have allowed impeachment for mere political disagreements, rendering the president a ward of Congress and destroying the executive’s status as an independent, coequal branch of government. If the House impeaches on such grounds and the Senate concludes it has jurisdiction to conduct an impeachment trial, it should focus first and foremost not on the details of Mr. Trump’s foreign policy, but on the legal question of whether the conduct alleged is an impeachable offense.

Alexis de Tocqueville observed in 1835: “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.” What House Democrats are doing is not only unfair to Mr. Trump and a threat to all his successors. It is an attempt to overrule the constitutional process for selecting the president and thus subvert American democracy itself. For the sake of the Constitution, it must be decisively rejected. If Mr. Trump’s policies are unpopular or offensive, the remedy is up to the people, not Congress.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: https://www.wsj.com/articles/this-impeachment-subverts-the-constitution-11572040762

Congress can’t outsource impeachment

By David B. Rivkin Jr. and Elizabeth Price Foley

31 May 2019 in the Wall Street Journal

It’s as if nothing happened. Special counsel Robert Mueller and the Justice Department found no wrongdoing by President Trump, so House Democrats stepped up their calls for impeachment. Judiciary Committee Chairman Jerry Nadler issued a subpoena for millions of pages of evidence gathered by Mr. Mueller, including grand-jury material, which is secret under the law. When the department didn’t comply, Democrats said there was a “constitutional crisis,” and the committee voted to hold Attorney General William Barr in contempt.

Yet if there is a constitutional crisis, its source is the Democrats. They are abusing the powers of investigation and impeachment in an illegitimate effort to unseat a president they despise.

Congressional Democrats claim they have the power to investigate the president to conduct “oversight” and hold him “accountable.” That elides an important constitutional distinction. As the Supreme Court said in Watkins v. U.S. (1957), Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Executive departments and agencies are created by Congress and therefore accountable to it. The president, by contrast, is not a creature of lawmakers. He is Congress’s coequal, accountable to Congress only via impeachment.

To commence impeachment, the House has a constitutional obligation to articulate clear evidence of “high crimes and misdemeanors.” A two-year Justice Department investigation did not find that Mr. Trump had committed crimes. On the Russian collusion issue, Mr. Mueller reported that his investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Regarding obstruction of justice, Mr. Mueller “did not draw ultimate conclusions about the President’s conduct,” so the duty to do so fell on his boss, Mr. Barr—who, with senior Justice Department officials, concluded that the evidence was “not sufficient to establish that the President committed an obstruction-of-justice offense.”

House Democrats claim they’re entitled to see Mr. Mueller’s underlying materials. But Congress may not use its subpoena power for a prosecutorial do-over. The Constitution gives law-enforcement authority to the executive, not the legislative, branch. In Quinn v. U.S. (1955), the Supreme Court said that Congress’s “power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.”

Impeachment isn’t a law-enforcement function, but demanding Mr. Mueller’s documents to search for impeachable offenses is still unconstitutional. The Constitution gives the House the “sole power” of impeachment. Outsourcing aspects of the process to the other branches of government violates separation of powers.

Unfortunately, there is a precedent for such outsourcing, though it is one that ought to give Democrats pause: the impeachment of President Clinton. The offenses for which Mr. Clinton was impeached—perjury before a grand jury and obstruction of independent counsel Kenneth Starr’s investigation—were established by Mr. Starr, who informed Congress that “the evidence of wrongdoing is substantial and credible, and that the wrongdoing is of sufficient gravity that it warrants referral to Congress.” Mr. Starr issued a report and turned his materials over to the House because the now-defunct statute under which he operated required it. The Justice Department’s special-counsel regulations, which govern Mr. Mueller’s investigation, do not.

The Supreme Court upheld the constitutionality of the independent counsel in Morrison v. Olson (1988). It did not address the constitutionality of the requirement that independent counsels turn over evidence of impeachable offenses to the House. If it had, there would be deep concerns about separation of powers. In addition to the textual declaration that the House has the “sole power” of impeachment, the debate over impeachment at the Constitutional Convention supports an outsourcing prohibition.

Delegates were deeply divided on whether the president should be subject to impeachment at all—and if so, which institution should have this great power. They considered vesting the impeachment power in state legislatures but rejected the idea. The concern was that it would make the president too dependent on the states, endangering the vertical separation of powers. They also pondered entrusting impeachment authority to the judiciary—essentially, to the Supreme Court—but concluded that would give the judiciary too much power and enable it to impeach its own members.

Eventually and with misgivings, the Framers settled on vesting impeachment authority in the House, with trial by the Senate. Their greatest fear was that this arrangement would destroy separation of powers by rendering the president perpetually dependent on legislative approval. Charles Pinckney believed congressional impeachment power would chill the president’s exercise of his core constitutional powers (such as vetoing legislation) and encourage Congress to hold impeachment “as a rod over the Executive and by that means effectually destroy his independence.” Rufus King opined that “under no circumstances ought [the president] to be impeachable by the Legislature,” because such power would be “destructive of his independence.”

The Framers took pains to devise meaningful limits on the impeachment power. When George Mason proposed to add “maladministration” to treason and bribery as a basis for impeachment, James Madison demurred: “So vague a term will be equivalent to a tenure during the pleasure of the Senate.” In Federalist No. 65, Alexander Hamilton argued that “the greatest danger” of giving Congress the impeachment power is that its “decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.” To allay these concerns, the Framers limited impeachment to “high crimes and misdemeanors”—not mere political disagreements.

In addition, by resting the entire impeachment power in Congress, the Framers constrained it. Congress was to have limited investigatory power and to conduct its proceedings in a transparent, politically accountable manner. That effectively meant presidential misconduct would have to be open and notorious to be impeachable.

In that regard, at least, the 1868 impeachment of Andrew Johnson was exemplary. His firing of War Secretary Edwin Stanton was in open defiance of the Tenure in Office Act, although the Supreme Court eventually concluded the law itself was unconstitutional. Republicans who pushed Johnson’s impeachment were held politically accountable, with Democrats gaining 20 House seats out of 243 in the 1868 elections.

If the House can outsource impeachment, the deepest concerns of the Framers will become reality. Impeachment would have few limits and no political accountability. As a federal prosecutor, Mr. Mueller legitimately obtained information from a grand jury, wiretaps and other forms of surveillance unavailable to Congress. If Congress can secure these materials by simply commanding the executive branch to turn them over, it would tremendously augment its power.

Turnover of prosecutorial materials would allow Congress to hide behind the fact-finding and legal determinations of the other branches, thereby diminishing its own political accountability. Because the nation’s law-enforcement officials have concluded Mr. Trump has not committed any crimes, Democratic representatives cannot legitimately draft articles of impeachment accusing him of criminal conduct involving the same offenses of which he was cleared by the Mueller investigation. The House could impeach him for misconduct that doesn’t violate criminal statutes—say, abuse of power or inappropriate behavior. But lawmakers must be candid about what exactly the charge is.

Proceeding in such a fashion—not hiding behind criminal accusations that prosecutors have rejected—would require House Democrats to assume the full political risk for their impeachment efforts. Instead, they are pressing Mr. Mueller to testify, hoping he will say something beyond what is contained in his report, and to obtain his investigatory materials. By second-guessing the prosecutors and recasting Mr. Trump’s conduct as criminal-law violations, Democrats seek cover for their raw political push to unseat a president.

Outsourcing impeachment also fundamentally deforms the executive branch. In Federalist No. 51, Madison explained that each branch must possess “the necessary constitutional means and personal motives to resist encroachments of the others. . . . The interest of the man must be connected with the constitutional rights of the place.” When executive-branch officials see themselves as working for Congress, there is severe constitutional dislocation.

Mr. Mueller’s team, for example, embraced the proposition that a president can obstruct justice by exercising his constitutional powers, such as firing the director of the Federal Bureau of Investigation, if his decisions have a corrupt motive. That position runs roughshod over opinions of the Justice Department’s Office of Legal Counsel, which has consistently concluded that, to protect separation of powers, laws should not be construed to apply to the president’s performance of his official duties, absent a clear statement otherwise.

The obstruction statutes contain no such clear statement. And while Mr. Mueller refrained from ascribing corrupt motives to Mr. Trump, his legal view that the president can obstruct justice while discharging his constitutional powers is at odds with constitutional principles and would have never been adopted by the Justice Department in the normal course of business.

Allowing executive branch officials to investigate a sitting president all but invites a coup. Former Justice Department attorney Neal Katyal recently admitted that “the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress.” Mr. Mueller hinted at the same idea in a public statement Wednesday: “The Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing.”

To Mr. Katyal and others now proclaiming a “constitutional crisis,” the special counsel works for Congress, not the president. Similarly, House Democrats claim it was illegitimate for Mr. Barr and other senior Justice Department officials to reach a prosecutorial judgment on obstruction of justice. In their view, that determination should have been made by Congress—which has no power to make prosecutorial judgments.

These views reflect a deep constitutional rot. While executive-branch officials must abide by legitimate oversight requests from lawmakers, they work for the president, not for Congress. Investigations of a sitting president by the executive branch threaten the separation of powers by encouraging insubordination to the president. Executive officials may be willing to help grease the wheels of impeachment. That’s no way to run a government of separated powers.

America’s experience with special prosecutors, independent counsels and special counsels has left a trail of partisan-fueled destruction. These investigations are inherently harmful to national unity and a stain on the constitutional fabric. The only way to restore the separation of powers and prevent further damage is to ensure that Congress cannot outsource any aspect of its impeachment powers.

Existing opinions from the Office of Legal Counsel already hold that no sitting president should be indicted or criminally prosecuted, because such actions would debilitate the presidency. The same is true of criminal or counterintelligence investigations. Thus the OLC logic should extend those opinions and conclude formally that a sitting president cannot be investigated by the executive branch.

If the U.S. is led one day by a truly corrupt president, the proposed cure of executive-branch investigation to aid impeachment would still be far worse than the disease. A president who openly violates the law or otherwise betrays the public trust can be voted out of office or impeached by Congress—using, as the OLC has noted, “its own investigative powers” in an open, politically accountable way.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: https://www.wsj.com/articles/congress-cant-outsource-impeachment-11559341259