By Robert B. Charles –
Today, we face a strange, new “iron triangle,” one that our Founders may not have foreseen — but one that we must understand — and break by voting in November. The carefully designed “checks and balances” bequeathed to us by those who wrote the U.S. Constitution are stuck on this triangle.
The U.S. Constitution created co-equal “branches” of government. We all know them, the Executive, Legislative and Judicial. The Founders strived to put in place “checks and balances,” imagining their constitutional construct would stand the test of time. They sought to anticipate all possibilities, and discussed them in The Federalist Papers. To their eternal credit, these efforts have guarded our God-given liberties for more than 225 years. Today, however, we confront a new configuration of leaders and behaviors, some of which may go beyond what the Founders foresaw. The new burden is on us.
Before reviewing facts, here is a refresher on “checks and balances” — how they work to assure accountability. Article II, Section 2, gives the president the power to “appoint … officers of the United States.” In the event that a sitting Attorney General fails to perform his constitutional duties in ways that lack transparency, truthfulness, integrity or conformity with prevailing laws, the Constitution provides a President with full power to remove him. Likewise, a sitting President must abide the law. Since we expect the Attorney General to uphold his Oath, if a president’s truthfulness comes into question on issues of national security or domestic law; if there are questions about his abuse of office for political purposes, the Attorney General is expected to investigate. Assuring checks and balances – until 1999 – we also had an Independent Counsel Act. That act allowed appointment of an independent prosecutor to investigate high-ranking officials, beyond politics.
How else can we keep a President or Attorney General accountable? Under Article II, Section 4, if an offense by a cabinet member or president is grave enough, the offending official can “be removed from office on impeachment” by Congress. That procedure requires the U.S. House to vote articles, and a trial convened in the U.S. Senate. Of course, short of impeachment, the accused official could resign. President Nixon took that route. To secure impeachment, the Senate Majority Leader must take that issue to the Senate floor for trial and vote.
So, here is the way it is supposed to work: These “checks and balances” keep an errant Attorney General “checked” by the President and Congress – assuming the Senate Majority Leader will convene an impeachment vote, if needed. The President is “checked” by an honest Attorney General, sworn to uphold the U.S. Constitution and honest Senate Majority Leader. Finally, an errant Senate Majority leader – or any member of Congress – is “checked” by an Attorney General who, if he suspects criminality, investigates and prosecutes.
So, what is all this “iron triangle” business? Consider the current twist of history, one in which we are all stuck. What if the Senate Majority Leader acts contrary to law and the Attorney General refuses to investigate him, recognizing that this could open a counter-measure, namely impeachment? What if that same Attorney General’s actions warrant impeachment, but the Senate Majority Leader refuses to act – since this could place him in jeopardy of investigation? What if a President — who hires and fires Attorney Generals – is suspected of abuse, for example: persecuting opponents through the Internal Revenue Service, suppressing material facts on national security (such as Benghazi and information collection), or clamping down unconstitutionally on individual liberties – but the Attorney General allows such abuses to slide, protecting his own job? You have an “iron triangle” of unaccountability.
What would the Founders say about the possibility of “criminal equipoise” among top government actors? They would be dismayed. What would the Founders say about an Attorney General who takes no action against a Majority Leader allegedly giving $16,000 dollars in campaign money to a relative, and then separately taking campaign money from companies under criminal investigation? Instead of following facts, this Attorney General halted FBI involvement in the investigation of the Majority Leader. Why?
What would the Founders say about a Majority Leader who telegraphs that he will take no action against that same Attorney General for activities that should put impeachment in play? What would the Founders say about a President who feels no constitutional burden to inquire further into these actions – and, coincidentally, has a number of potential abuses of his own to explain? They would recognize the “iron triangle” of unaccountability – an unbreakable and indefensible chess move, clever and illegitimate – and they would be chagrined.
The U.S. Constitution – and Founders who designed it – assumed a modicum of integrity and commitment to the Constitutional Oath they insisted high officers swear. They assumed a degree of honor. The President and Attorney General take an Oath to uphold the Constitution in Article II, Section 1, the Majority Leader from Article VI, Section 3. Yet today, the very officials meant to check each other appear to be covering for each other.
So, what is the answer? The only answer is, for better and worse, found in the U.S. Constitution. The U.S. House of Representatives can – with reluctance– commence impeachment proceedings against the U.S. Attorney General, pressuring the Senate to step forward. The U.S. Attorney General could reopen FBI involvement in the case involving the Majority Leader, perhaps also accommodating concerns of Congress which produced the contempt vote against him. The President could suggest that the Attorney General step down, encouraging a new Attorney General to allow FBI participation in the Majority Leader’s case.
Probably, however, the only way “We the People” will restore accountability is at the ballot box. Thus, we must resolve to vote out this Senate leadership, and vote in a new U.S. Senate, one that cares about fidelity to law and the U.S. Constitution. This November, we will have that chance – and we must not forget. This is not the end of wisdom, nor the beginning – but perhaps, borrowing from Churchill, the end of the beginning. Our Founders expected one other thing – they expected us to care, even so many years later, and to help them get it right.
First published in The American Thinker on April 17, 2014
Robert Charles is a former U.S. Court of Appeals clerk, civil litigator and counsel to a congressional oversight committee, who taught Government Oversight at the Harvard Extension School, and now leads a Washington DC consulting group.