TRUMP AND A CRAZY LITTLE THING CALLED “SIGNING STATEMENTS”: ANOTHER REASON FOR VOTING

In the American system, Congress passes laws,  the president signs and carries them out, and the courts interpret them or

determine if they’re constitutional, right?  It turns out it’s not quite that simple. Thanks to signing statements, presidents may put their thumbs on the scale and say more about what a law means, in practice, than does Congress.

 

President Trump exerted that kind of presidential primacy in connection with a key portion of the $2.2 trillion economic stimulus package aimed at helping the nation through the current coronavirus pandemic. Congress

passed that legislation March 27 and Trump signed it the same day. Hours later he released a signing statement indicating he doesn’t intend on complying with all the provisions of the law that would assure transparency in the $500 billion part of the legislation aimed at helping corporations. So, what’s a signing statement and can Trump do what he said he’d do?

A Tradition from Nowhere

Signing statements express a president’s view of the constitutionality of specific legislation or how his interpretation of the legislation will guide enforcement of it or its

anticipated impact. They date back to James Monroe’s presidency. Ronald Reagan rapidly expanded its use in the 1980s. The Gipper issued 250 of them. In only one term, his successor, George H.W. Bush, issued 228. Bill Clinton

issued 381 during his eight years in the White House, Barack Obama 37. Historians now regard George W. Bush as the king of signing statements. Though he issued only 161 separate signing statements, he used them in challenging over 1000 provisions of various laws. The great classicist and historian Garry Wills once told an audience the younger Bush challenged more provisions of laws through signing statements than all his predecessors combined.

 

Despite this history, the federal constitution does not include a signing statement provision. They’ve just sort of become part of the legislative process. Members of Congress and others have challenged the actions presidents have taken through signing statements. Such challenges assert the president acted in a way at odds with the intent of Congress in passing the law at issue. The challenges have a mixed record, with the outcome of the cases turning on whether the court concluded the president did or did not enforce the law as Congress intended. Courts have not, however, declared the practice of issuing and using signing statements unconstitutional. 

  

Trump and the Stimulus Legislation

Trump said his administration wouldn’t treat the stimulus legislation as permitting the inspector general provided for in the bill (also known as  the SIGPR) to issue reports to Congress without his approval. In other words, the special inspector general couldn’t give Congress potentially damaging information about how the $500 billion corporate relief part of the package is being

spent unless Trump personally approved. Congressional Democrats and watchdog groups fear much of the $500 billion will get used by corporations for things like stock buybacks and executive bonus payments, not worker salaries as Congress intended.

Trump’s signing statement flies in the face of

the transparency congressional Democrats, in particular, fought for in passing the bill. Many in Congress don’t trust that Trump and his Treasury

Secretary, Steve Mnuchin, will make sure the money benefits workers, not corporate executives as occurred with TARP money during the Great Recession of 2008.

               

Certainly, presidents have used signing statements for reasons that don’t suggest evil. These include telling the public what the president expects as a likely effect of the legislation or guiding subordinates in carrying out the legislative purpose. Presidents have also used signing statements in advising the public he views some part of the bill as unconstitutional and expects a court challenge. Trump, however, suggested none of these things in his statement. He just made clear the public will find out only what he wants it to find out about the $500 billion. 

     

What to Do

When someone with dishonest motives occupies the White House, the temptation

arises to say that the courts or Congress or someone should get rid of signing statements. After all, they have no textual foundation in the constitution and Congress has never enacted a statue providing for them. 

History, though, shows that presidents in both parties use them, perhaps for good reason.

Signing statements may, under certain circumstances, function as part of our system of checks and balances. Congress, for example, could go off the deep end with ill-advised legislation a president prefers not vetoing because it contains provisions

addressing a serious national need. A signing statement, and subsequent presidential action, limiting the negative impact of the bad parts of the legislation may represent the best course for the country. Perhaps signing statements aren’t all bad.  We believe the country can take some

comfort in knowing that the courts remain the final arbiter of any action the president takes pursuant to the execution of any signing statement.

The presence of signing statements in our system illustrates the power of the presidency

and emphasizes the importance of getting right who occupies that office. In November the voters weigh in on who can issue signing statements the next four years. As we’ve said before, we can’t mess this up.  

                                      

 

    

PROTECTING ROBERT MUELLER: ALLOWING THE SPECIAL COUNSEL TO GET TO THE TRUTH

Should President Trump fire special counsel Robert Mueller?  Should Mueller get more time to finish his investigation?  Not a day goes by now without a suggestion that Trump will soon set in motion events leading to the firing of the special counsel.  Since only Deputy Attorney General Rod Rosenstein can actually dismiss Mueller, presumably Trump would start by ordering Rosenstein to fire Mueller.  Should Rosenstein refuse, Trump would fire Rosenstein and replace him with someone who would fire Mueller, raising the specter of the 1973 Saturday Night Massacre. Richard Nixon had to dismiss both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus before finding someone in the Justice Department – Solicitor General Robert Bork -- who would carry out his order to fire special prosecutor Archibald Cox.  The Saturday Night Massacre, of course, ultimately led to appointment of another special prosecutor, Leon Jaworski, and paved the way for Nixon’s resignation in the face of certain impeachment.

Credible news reports indicate Trump ordered Mueller’s firing in June 2017 and tried again in December 2017.  The first time, Trump backed off because White House counsel Don McGahn threatened resignation if Trump went through with the dismissal.  In December, Trump discovered reports Mueller had subpoenaed some of his bank records weren’t

true and decided not to order Mueller’s dismissal.  These false starts don’t mean Trump won’t succeed in getting the special counsel fired.  Despite claims by Republicans, like departing House Speaker Paul Ryan, that they “don’t think” Trump will have Mueller fired, lots of people in Washington now believe it has become a matter of when, not if.

CONGRESS TO THE RESCUE

So what could stop Trump from successfully having Mueller axed, halting the Russia investigation?  One easy answer in theory that’s very difficult practically lies in congressional action.  Later this month, the Senate Judiciary Committee will vote on a bill sponsored by two Republicans – Thom Tillis of North Carolina and South Carolina’s Lindsey Graham – and two Democrats -- Chris Coons of Delaware and Cory Booker of New Jersey.  The legislation, identical to a measure introduced in the House by Pennsylvania Republican Charlie Dent and Vermont Democrat Peter Welch, would set specific standards for firing a special counsel and put review of such a firing in the hands of a three-judge federal panel.  Proposing, and maybe passing the bill, is easy.  Then the hard part starts.

First, as Republican Senator Susan Collins of Maine said recently, Trump would never sign such legislation.  It seems certain, in fact, he would veto that kind of measure.  Congress rarely overrides Presidential vetoes, especially ones of controversial bills like this one.  Veto overrides require a two-thirds vote in both chambers.  Given the current makeup of the House, assuming all 192 Democrats vote to override, passing the bill over Trump’s veto would require 99 Republican votes to get to the necessary two-thirds, 291 votes in the 435 member lower chamber.  In the Senate, assuming all 47 Democrats and the two Independents who caucus with them – Bernie Sanders of Vermont and Angus King of Maine, support an override, it won’t happen without 18 Republican votes to get to 67 for the two-thirds requirement.

Those numbers don’t even take into consideration the potential constitutional problems with legislation protecting Mueller.  Such a measure would thrust Congress into an executive branch personnel matter that might implicate separation of powers concerns.  Some constitutional scholars think impeachment represents the only way Congress can override such a Presidential action.  Senator Collins, in fact, agreed Congress would “send a message” if it passed such a law, but acknowledged it might not stand if challenged in the courts.

OTHER WAYS

Other things are now in the picture that potentially can keep the investigation going, even if Trump fires Mueller.  If Trump starts with firing Rosenstein, the Senate could require a promise from a new Trump appointee for Deputy Attorney General that he or she would have to appoint a new special counsel (AG Jeff Sessions has recused himself from Russia-related matters).

The recent FBI raid on the offices and residences of Trump lawyer Michael Cohen offers another vehicle for keeping the investigation

going, even if Trump succeeds in having Mueller sacked.  The United States Attorney for the Southern District of New York, Geoffrey Berman, initiated the Cohen raid after a referral from the special counsel’s office.  That part of the investigation, therefore, will continue, Mueller or no Mueller.  It’s been suggested this investigation imperils Trump more than the Mueller probe because it could lead to review of Trump’s real estate and other business practices going back years, not just his possible collusion with the Russians in interfering in the 2016 election.  

Finally, if all else fails, some of Trump’s alleged transgressions related to alleged collusion with the Russians, possible obstruction of justice, and money-related crimes might also have violated state laws.  Prosecutors in New York and other jurisdictions could pick up the investigation, though they might have to limit their probe in ways federal prosecutors do not.

Trump may well fire Mueller. As Trump likes to say, “We’ll have to see what happens.”  One thing that’s not happening is a complete shutdown of the investigation into Trump’s actions.  That will continue.