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Michael A. Cohen

Our coming constitutional crisis

Carolyn Kaster/Associated Press/File 2017

It’s been evident for quite some time that Donald Trump is driving America off a cliff.

His tweeting, which has always been the best window into his profound narcissism, crushing insecurities, and manufactured delusion has become increasingly disturbed and irrational. But it his ongoing and ever-escalating complaints about the Russia investigation that are perhaps the most disturbing and show yet again that he has no respect for the rule of law and no understanding of where the limits of his presidential power end. All of it is ominous evidence that we are careening ever closer to a true constitutional crisis.


To be sure, we’ve been in the midst of just such a crisis since the day Trump took office. For six months, Trump has been in violation of the Emoluments Clause of the Constitution, which prevents presidents from directly profiting from their office. Trump has compounded the norm-violating and law-breaking by openly boasting about interfering in criminal investigations and seeking to obstruct justice. But this is only the appetizer of unconstitutionality; the main course may soon be upon us.

Last week, Trump openly said that if special counsel Robert Mueller investigated his family finances it would represent the crossing of a red line. The next day it was reported that Trump’s legal team is seeking to discredit Mueller by accusing him of conflicts of interest. It could hardly be clearer that Trump and his aides are laying the groundwork for an effort to fire Mueller and end his investigation. Indeed, his tweets and statements that are seemingly pressuring Attorney General Jeff Sessions to resign represents a transparent effort to replace the man who recused himself from the Russia investigation with somebody who will push Mueller out.

At the same time, there are growing signs that Trump is seriously debating the possibility of issuing pardons to those caught up in the Russia investigation, including, potentially, one for himself.


If Trump were to go down this path, the consequences would be dire. Firing Mueller would be a direct assault on the rule of law and the very notion of democratic accountability. Coming only months after his dispatching of FBI Director James Comey because of the Russia investigation, it would represent an unambiguous effort on the part of Trump to shut down a criminal inquiry that is laser-like focused on his actions and those of his family and aides. It would, for all intents and purposes, turn the presidency into a quasi-authoritarian position — and allow the nation’s top elected official to decide by whim or fiat to whom the rule of law should be applied.

If Trump were to pardon himself or those close to him, it would have a similar effect — by allowing Trump to use the awesome powers granted to him by the Constitution to openly evade and obstruct justice.

To be sure, even if Trump took these actions one could argue that he was operating within the law — particularly in the use of pardons. But only the most deluded partisan would fail to recognize that such actions would represent the very definition of a presidential abuse of power. Indeed, the only true check on any president going down this road — in ways that violate both the letter and spirit of the Constitution — is another set of constitutional powers afforded to Congress, impeachment.


If Trump were to fire Mueller, Congress could immediately pass a new independent counsel law restoring Mueller to the position. If Trump used his pardoning power to protect himself and his aides impeachment proceedings could begin immediately.

But is there any reason to believe that congressional Republicans, who control the House and Senate, would step up to the plate and put party ahead of country? Is there reason to believe they would do more than furrow their collective brows, express deep “concern,” tsk-tsk at the White House and then sit back and do nothing as our constitutional crisis grew?

So far, the answer is no. For six months, congressional Republicans have looked the other way at the president’s financial improprieties, his efforts to interfere with the Russia investigation, and the dozens of smaller yet profound acts of malfeasance that have defined Trump’s short presidency. In doing so they’ve abdicated their most basic oversight responsibilities and allowed law-breaking and norm violations to accumulate so rapidly that it may take years to undo the damage.

But there are constitutional crises . . . and then there are constitutional crises. Firing Mueller, and pardoning himself and his close aides must represent a red line for Congress to finally say, “enough is enough.”

If they don’t? Well let’s just say no patriotic American should want to find out what happens next.

Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.