By Noah Feldman
By now we’re accustomed to hearing President Donald Trump complain that the Department of Justice and the Federal Bureau of Investigation don’t do what he tells them.
The basis for his frustration is a serious mismatch between the U.S. Constitution as it’s written and the unwritten constitutional norms that Trump is blamed for breaking. The written Constitution puts the Justice Department and the FBI squarely under the president’s control. The unwritten, lower case “c” constitution says that the president may not politicize criminal investigations and prosecutions.
As special counsel Robert Mueller’s investigation focuses more on Trump’s handling of the Russia investigation than on the 2016 campaign itself, the mismatch between what the written Constitution says and what the unwritten rules demand might be the basis on which Trump’s presidency stands or falls.
The written Constitution presents itself as, among other things, the basic organization chart of the U.S. government. It doesn’t mention the attorney general or the Department of Justice or any other Cabinet official by name, but Article II Section 2 does mention the Cabinet indirectly. It says the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Thus, the Constitution contemplates the existence of “executive departments” whose officers answer to the president.
Although the Justice Department was not among the original set of executive departments created, George Washington’s first Cabinet did include an attorney general, Edmund Randolph of Virginia, whose office was established by the Judiciary Act of 1789. Like the rest of the Cabinet, the attorney general could be fired by the president. (In fact, Washington did effectively fire Randolph by accusing him of leaking inside information to the French ambassador, though by then Randolph had become secretary of state.)
On the org chart, then, the executive is in charge of the prosecution and investigation of federal crimes. All the other Cabinet-level executive branch officials can be fired by the president for any reason. Technically, the same is true of the attorney general and the director of the FBI.
The mismatch arises because over the centuries, it became clear that an org chart dating to 1789 wouldn’t work in the modern world. In particular, as other democracies created independent entities for criminal investigation and prosecution, it emerged that the rule of law would not be well served by allowing the president to make political judgments about those key functions.
A compromise developed that the post of attorney general remained political, but presidents accepted the de facto rule that they would not politicize investigations or prosecutions, and would not fire the attorney general over such decisions. The office of FBI director was also effectively depoliticized.
This compromise didn’t come without cost. Its most spectacular moment was the Saturday Night Massacre, when President Richard Nixon ordered Attorney General Elliot Richardson to fire special counsel Archibald Cox, who was investigating the Watergate scandal. Richardson refused and resigned, as did Deputy Attorney General William Ruckelshaus. Cox was then fired by Robert Bork, who as solicitor general was then next in line at Justice.
We sometimes think of the Saturday Night Massacre as though it were entirely about the firing of Cox. But it was also about Richardson and Ruckelshaus. Their refusal to follow Nixon’s order and their immediate resignations embodied the unwritten constitutional norm against politicizing investigation. Their political martyrdom had an important effect on practice.
Fast-forward to Trump. As Trump has acknowledged, when he took office, he expected that the Department of Justice would answer to him. When he asked FBI Director James Comey for loyalty and questioned then-Acting FBI Director Andrew McCabe about how he voted in 2016, Trump was expressing the belief that the FBI was no different from any other executive bureau. And on the official org chart, he was right.
Yet the political effect of the unwritten constitution can outweigh the text of the written one, as Trump has been learning. The consequences of firing Comey are not yet fully known. Trump’s attempt to fire Mueller — an act within his official constitutional authority — was rebuffed by his own White House counsel. It would be hard to imagine a clearer example of norms trumping official authority.
So what is the solution to this mismatch problem? Unfortunately, when the written and unwritten constitutions collide, neither can resolve the conflict.
What that leaves is politics. Trump will keep pushing. The rest of the system will keep pushing back. Should Trump fire Mueller or take other acts that clearly break the unwritten rules, the truth about what the Constitution ultimately requires will emerge from what happens — not from what is written or the norms as they exist.
It’s a funny way to do business. But it has worked for 229 years. Short of changing the org chart by amending the Constitution, it will have to keep on working now.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.