The most surprising thing about Wednesday’s resignation of Jeff Sessions is that it did not happen sooner. President Trump has long been furious with his attorney general for recusing himself from the Russia investigation, and has had the power to fire him at any time. Trump’s decision to oust Sessions also removes Rod Rosenstein as acting attorney general for the purposes of the Russia investigation, leaving the fate of Special Counsel Robert Mueller uncertain. This drives home an essential truth about all independent investigations of the presidency: Their outcomes aren’t determined by the prosecutors or evidence alone, but by the public’s reaction to what it learns, and to how presidents choose to react.
Americans are deeply committed to the maxim that no one, not even the president, is above the law. Even the most expansive proponents of executive power do not dispute this bedrock principle, which distinguishes constitutional democracy from monarchy. Yet no law required Rosenstein, as acting attorney general, to appoint an outside prosecutor when credible evidence emerged that the president’s 2016 campaign may have colluded with the Russian government. When Rosenstein elected to appoint such a prosecutor voluntarily, no law barred Trump from shuttering the investigation to protect his family, his friends, or himself.
Special prosecutors like Mueller serve as catalysts for democracy. Their high visibility makes it easier for the American people to monitor presidential misconduct and to hold the president accountable for his actions. But special prosecutors, no less than presidents, can misuse their power. To temper this danger, Trump retains the authority to dismiss Mueller at any time. If he exercises that power for a corrupt purpose or out of simple caprice, Mueller has no legal recourse. But he is not totally defenseless. Trump must ultimately answer to the American people. This can be a potent check, but it is also a fragile one. [Continue reading…]