Is a constitutional crisis merely a matter of opinion?


There are two words–constitutional crisis–beginning to surface with more frequency among those watching the actions of the infantile Donald J. Trump in the White House.

As Robert Mueller’s Russia investigation continues to drill down and the bizarre and lame so-called Nunes memo drives speculation that Mueller and the Justice Department lawyer who hired him, Rod Rosenstein, will soon be fired, Congressional Democrats are raising the possibility of a constitutional crisis, and that certainly seems foreboding, but what exactly does that mean, and will Republicans agree?

According to a recent story in the Huffington Post, there is no hard definition of a constitutional crisis, but the following statement is offered as an attempt to clarify things: “Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions.”

The story proposes that there are “operational,” “fidelity” and “power struggle” types of constitutional crises. The operational type occurs when important political disputes cannot be resolved within the existing constitutional framework. A crisis of constitutional fidelity occurs when the Constitution’s meaning is clear, but one or more branch of government or a key political actor willfully defies the charter’s clear meaning. And a power struggle seems straightforward – two or more political actors believe the other is violating the constitution and neither is willing to budge.

So what are we talking about in this case? Well, I’m not a lawyer or a scholar, but I’m finding a hard time fitting Trump’s firing of Mueller, if it were to occur, into any of those three boxes, even though the last time a president fired a prosecutor investigating his commander-in-chief (Nixon and Archibald Cox), it ultimately led to resignation under threat of impeachment. Nixon acted because Cox got too close and/or was considered impertinent, and the same fate–for the same reasons–may await Mueller.

Another story, from the web site 538, states there are four types of constitutional crisis:

1) When the Constitution is vague, making direction unclear.

2) When the Constitution’s meaning is in question.

3) When the Constitution’s direction isn’t politically feasible.

4) When government institutions fail.

That last one may offer something relevant for Trump and Mueller. Our government’s system of checks and balances is supposed to permit the investigation of a president when there is evidence of wrongdoing, and what we know about Trump, Russia and possible obstruction of justice would certainly seem to meet that test.

But what if Trump fires Mueller, anyway? Who will hold him accountable? Who will prosecute the constitutional crisis? That’s where things get murky. The constitution is a political charter in a system controlled by a majority party that effectively gets to decide whether or not there’s a crisis.

Republicans are in control right now and they would very much like to stay there, as they’ve shown with a collective blind-eye to Trump’s dozens of transgressions.  Impeaching him would effectively cede control to the Democrats. With any luck, though, the Dems will end up with control anyway after the midterm elections, and then maybe this clumsy, ignorant would-be dictator can be sent home. But until then a constitutional crisis seems to be matter of debate, one the Democrats don’t have the numbers to win. They claim crisis and the GOP majority dismisses it as mere opinion.

We have the Supreme Court–the highest court in the land–in place to resolve constitutional conflicts. But make no mistake – that’s not some sort of altruistic purely legal benchmark. Elected officials nominate and confirm the justices, and while a distinguished legal resume’ is a pretty much a requirement, judges often times apply the rule of law according to their political philosophy, and therefore a majority on the court is considered a valuable political asset.

Of course, the Supreme Court probably wouldn’t end up ruling on all this, anyway. Trump’s fate is likely in the hands of Congress until he runs for re-election in 2020 – that is, if he chooses to do so. The high court example is offered only to demonstrate that this whole thing–our entire societal structure, the so-called American experiment–is built on a political foundation, and it is precarious.



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