Professor Deborah Ramirez and Greer Clem
The investigation by Special Counsel Robert Mueller and subsequent impeachment of Donald Trump laid bare threats to the rule of law and weaknesses in our separation of powers doctrine. As President Trump continues to flex almost unrestricted executive authority, the question as to how we protect the rule of law and fortify the constitutional doctrine of separation of powers is one that begs answering.
In this teaser paper, we preview a larger discussion of three central issues: the need for expedited judicial review, the question of whether a sitting president may be indicted while in office, and the obligation to report foreign interference into our national elections. This Forum post outlines these issues and potential solutions, and the Northeastern University Law Review will soon publish the full paper examining these issues in greater detail.
One of the most significant issues raised through the investigation and subsequent impeachment trial of Donald Trump is that, during a lawless presidency, much of the original infrastructure created by the Founders falls short. The Founders intended the separation of powers – the hallmark of our governmental structure – to protect the rule of law by dividing power among three coequal branches, thereby restricting unbalanced, unilateral authority. Each branch was granted power to perform specific functions, as well as additional abilities “to protect itself [from other branches’ encroachment] and to police the other departments.” In other words, the Founders envisioned the separation of powers to simultaneously be a “separation of functions” and a “balance of power.” Today, however, the Executive branch has seemingly unrestricted power not adequately policed by the other branches. Indeed, as the impeachment hearings revealed, the Judicial branch is absent, unengaged, and inefficient. Between these two extremes is the Legislative branch, which has unsuccessfully attempted to hold the President accountable without the Judiciary’s enforcement mechanisms. This imbalance of power is unacceptable and, if uncorrected, will only allow the fissures within our rule of law to deepen.
This paper uses the 2019 report ultimately produced by Special Counsel Mueller (the “Mueller Report”), the House impeachment hearings and subsequent Senate trial, and other sources to identify issues of structural weakness laid bare by the Trump presidency, and to propose additional infrastructure to protect the rule of law and recalibrate the three-branch system. We focus on three particular issues that require redress, explaining their significance and identifying starting points for potential solutions.
The first issue is the need for expedited judicial review and the restoration of the Judicial branch. As it exists today, judicial review is a slow and costly process. This means that, when the Executive branch came under investigation by Special Counsel Mueller, the lack of expediency and access resulted in Mueller essentially choosing to bypass the Judicial branch altogether. When expeditious judicial review is not an option, justice is delayed or denied. In Part I, we examine this issue and propose a new Rule of Federal Appellate Procedure that would create a process in which timely, constitutional questions could be adjudicated at the District Court level and then the United States Supreme Court could be directly petitioned for a writ of certiorari.
Part II discusses the second issue, hotly contested during Mueller’s investigation: whether a sitting president can be indicted. The Mueller Report reflected longstanding Department of Justice (“DOJ”) policy that forbids indicting a sitting president on criminal charges. However, an unchecked president who cites Article II authority when attempting to control a federally sanctioned investigation into his own actions cannot be allowed to act unimpeded. The resulting issue is the statute of limitations, which, for obstruction of justice and most federal offenses, is five years. If an investigated president is reelected, the statute of limitations may run by the time the president is out of office, giving the head of the Executive Branch carte blanche to commit criminal acts provided they are reelected. Accordingly, we propose legislation that would toll the statute of limitations for crimes committed by presidents while in office.
Part III then discusses the need to create an affirmative duty to report foreign interference in our electoral process. In the 2016 Presidential Election, the Russian Federation favored then-Candidate Trump, who ultimately benefited from Russia’s myriad efforts to influence the election. Though Trump campaign officials were aware of this foreign interference, there existed no duty to report, for example, the illegal hacking of candidate Hillary Clinton’s emails or meetings between members of Trump’s campaign and Russian officials. Without a duty for any campaign, presidential or otherwise, to report foreign interference, the integrity of the U.S. democratic system could be compromised without consequence. This evident gap in the rule of law may be amended by legislation, such as the proposed Duty to Report Act or amendments to the Federal Election Campaign Act. If unaddressed, however, it will not be a question of if foreign governments will continue interference, but when and how successful they will be.
The Founders established the separation of powers to ensure that no single branch of government is more powerful than another, thereby shaping and defining the infrastructure of our rule of law. Unfortunately, recent events revealed fissures in this infrastructure that must be addressed to maintain the integrity of our nation and our system of governance. As retired Federal District Court Judge Nancy Gertner has suggested, the legal community of scholars, Judges, and activists should convene a forum to identify other fissures in our rule of law structure and to develop new infrastructure to protect it. We have crafted this paper as a starting point, for without active solutions, the Trump presidency will be a blueprint for future administrations to act with unchecked, unilateral authority, potentially changing the fabric of our system of governance forever.
Deborah Ramirez is professor of law at Northeastern University School of Law. She teaches criminal law for first year students, along with advanced courses in race, justice, and reform. Deborah works extensively with academics, legislators, and current and former judges around the nation and the Commonwealth to advance criminal justice reform efforts. Beyond this, she also serves as faculty advisor to Northeastern’s Latin American Law Students Association (LALSA).
Greer Clem is a rising 3L at Northeastern University School of Law. A graduate of Tufts University in political science, she is devoted to protecting the rule of law and increasing accountability within our three branch political system.