The Peoples’ Constitution: The Mueller Investigation and Separation of Powers

By Ben Lenhart

The Mueller investigation into alleged collusion between Russia and the Trump campaign provides a helpful springboard to take a closer look at Separation of Powers, which lies at the heart of our Constitution.

Separation of Powers has two components. First, the Constitution creates three branches of government, each with its own sphere of core power and authority, which can’t be invaded by the other branches. Second, the Constitution creates overlap among the branches so that each branch can “check and balance” the others. Examples abound: the president can veto congressional legislation, the courts can strike down acts of Congress or the president as unconstitutional, and Congress can impeach the president.

While Separation of Powers can lead to slow and inefficient government, it serves a profoundly important purpose: to protect the people by ensuring that no branch of government becomes so powerful that it threatens our constitutional rights and liberties. In other words, Separation of Powers helps to govern those who govern.

To paraphrase James Madison: If men were angels, no government would be necessary, and if angels were to govern men we would not need Separation of Powers.

How then does the Mueller Investigation relate to Separation of Powers? The short answer is that any special prosecutor investigation involving a president has the potential to interfere with the constitutional duties of the president. Separation of Powers concerns can arise if actions by one branch invade the core functions of another branch, or cause that other branch to be unable to carry out its constitutional functions. To see concrete examples of these concerns, we look at a few to earlier cases where presidents were under investigation by a special prosecutor (sometimes called special counsel or independent counsel).

Nixon and the Watergate Tapes. President Nixon was being investigated for the Watergate break-in. He refused to comply with the order of a special prosecutor to release tape recordings of conversations related to Watergate. Nixon argued to the Supreme Court that the tapes were privileged and that Separation of Powers would be violated if he were ordered to turn over the tapes. Nixon claimed that neither he, nor any president, could fulfill his executive functions if another branch (the courts) was allowed to intrude on the president’s confidential conversations with his aides.

The court unanimously rejected Nixon’s arguments, and ordered him to turn over the tapes (Nixon resigned soon after). While the court readily agreed with Nixon that Separation of Powers concerns were present, it found that the tapes were important to an ongoing criminal investigation, and thus the need for the tapes outweighed those concerns.

 Clinton and Charges of Sexual Harassment. Paula Jones had sued President Clinton alleging sexual harassment by Clinton prior to his presidency. Clinton argued that Separation of Powers would be violated if the case were allowed to proceed during his presidency. Clinton claimed that the case would take up his time, interfere with his presidential duties, and thus weaken the presidency in violation of Separation of Powers. After all, Separation of Powers demands that each branch remain strong enough to carry out its constitutional duties. A unanimous court rejected Clinton’s arguments, and ordered the Jones case to proceed. But much like the Nixon case, the court acknowledged the great importance of Separation of Powers and noted that the trial court would need to: (a) carefully supervise the Jones case in order to avoid undue interference with the president and, (b) give “utmost deference to presidential responsibilities.”

Meanwhile, Independent Counsel Ken Starr was investigating Clinton, and he used Clinton’s testimony in the Jones case as part of the evidence that ultimately led to Clinton’s impeachment by the House (the Senate ultimately acquitted Clinton).

Reagan and the Environment. Alexia Morrison was an independent counsel appointed under a new “independent counsel” statute (passed by Congress in the wake of Watergate) to investigate the EPA in connection with the alleged failure to enforce environmental laws, and incomplete or untruthful EPA responses to questions about that failure. President Reagan had ordered the EPA not to comply with certain requests for information related to the investigation. Under the independent counsel law (since repealed), Morrison could only be removed for “good cause,” which was then subject to review by the courts—in other words, the new law stripped away Reagan’s (or his attorney general’s) unfettered right to fire Morrison for any reason.

Reagan argued that this violated Separation of Powers because it interfered with the president’s fundamental power to control prosecution and law enforcement, which are core executive functions. The court disagreed. While conceding, once again, that Separation of Powers concerns were very important to the case, on balance the court ruled that the need for an “independent” counsel—one that could not be so easily fired by the President—outweighed any modest intrusion on the executive function. Justice Scalia issued a stinging dissent, arguing that the new law clearly violated Separation of Powers because prosecution was the very essence of the executive branch, and the law intruded too much on that core function.

Trump and Russia. What are the lessons for the Mueller Investigation from these earlier cases? They cut both ways. On the one hand, Separation of Powers provides a strong base for President Trump (or any president) to claim a constitutional violation if the special prosecutor interferes too much with presidential duties or encroaches too far on the fundamental powers of the executive branch. For example, Separation of Powers concerns would be front and center if: (a) subpoenas, interviews or other requests from the special prosecutor became so onerous that they demanded large portions of the president’s time, taking him away from his core constitutional duties, or (b) Congress tried to strip away all executive branch control over a special prosecutor.

On the other hand, Presidents Nixon, Clinton and Reagan all tried—and mostly failed—to use Separation of Powers to limit the reach of a special prosecutor. While the Supreme Court went out of its way to acknowledge the importance of Separation of Powers concerns, and agreed with the need to show the “utmost deference to the president,” in the end the court sided with the special prosecutors. These cases demonstrate that the court will generally allow the special prosecutor to proceed so long as the investigation is lawful and within reasonable bounds. At bottom, the court is guided by the principle that no person is above the law.

Clashing Principles/Same Goal. The battle between Separation of Powers and a special prosecutor’s investigation of the president can lead to a constitutional clash. On the one hand, Separation of Powers demands that each branch of government remains strong and capable of fully carrying out its constitutional duties. On the other hand, a special prosecutor’s investigation of the president often tends to interfere with, and sometimes even weaken, the president. But while the two ideas are often in conflict, they both serve the same ultimate goal: to protect Americans from the grave dangers posed when any branch of government tries to assert power beyond its constitutional authority and uses that power to threaten fundamental rights and liberties of the people guaranteed by the Constitution.

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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