On Thursday, Department of Justice officials have scheduled a pair of meetings about an FBI informant’s role in the bureau’s investigations of Donald Trump. In brokering the deal, Trump and the Department of Justice have averted one showdown, but they are still heading toward a confrontation over highly sensitive and confidential material. The bad news is that the next confrontation might provide a pretext for Trump to fire DOJ officials, while further endangering our nation’s intelligence gathering and the rule of law. The good news is that this pretext is so clearly in bad faith that it might allow those DOJ officials to offer an overdue constitutional argument to clarify the limits of executive power: that the president’s constitutional duty to “faithfully execute” the office means he cannot sabotage criminal investigations or national security for self-protection. The next move might be to prepare for declaratory relief in federal court.
Deputy Attorney General Rod Rosenstein first acquiesced to presidential demands by expanding an inspector general’s investigation to include the role of the informant. Then the Justice Department agreed to two meetings. The first reportedly is set to include Speaker of the House Paul Ryan, House Intelligence Committee Chairman Devin Nunes, Intel Committee ranking member Adam Schiff, Rep. Trey Gowdy, Rosenstein, FBI Director Christopher Wray, Director of National Intelligence Dan Coats, and possibly White House chief of staff John Kelly. In the second meeting the rest of the bipartisan “Gang of Eight” is due to join this earlier group, sans Ryan. It is remarkable that both meetings will include a central White House official at a meeting about the investigation into the White House. None of this is normal.*
Many observers have written about the significant dangers and irreparable damage from this episode, particularly if Nunes get access to more confidential material. And some have criticized Rosenstein for capitulating to such a baseless and politicized charge, clearly initiated for the sole purpose of attempting to discredit the FBI and Robert Mueller’s investigation. Others have credited Rosenstein with maneuvering through this challenge, delegating the investigation within the DOJ and avoiding a showdown.
I also think he was wise to delay the confrontation, but that raises the question: What happens in the next confrontation?
Nunes’ ally, Rep. Mark Meadows, has pre-emptively called the meeting pointless, saying intelligence officials won’t offer the information being sought. Trump has also signaled his intentions to shift the focus to this story and escalate a fight. So, let’s game this out. In the Thursday meeting, Rosenstein, Wray, and Coats bring some information and redacted documents. Nunes demands unredaction and demands more information and more identities. Rosenstein, Wray, and Coats decline. First, Nunes could go back to the House and issue subpoenas for them. This battle would end up in court (very awkwardly), and the FBI is likely to prevail.
In addition to this protracted congressional path, the executive path is a direct order from Trump to the DOJ and FBI to hand over the information. The question for legal experts circulating over the last few days is whether Rosenstein, Wray, and others could refuse. The consensus was that no, they would have to either cooperate or resign, and that they had no legal grounds to refuse.
This consensus may be wrong. It overlooks a key part of the Constitution: Article II, Section 3, which directs that the president “shall take Care that the Laws be faithfully executed” (emphasis added).
As Ethan Leib and I have explained before in Slate, in the Washington Post, and now in a forthcoming academic paper, the phrase “faithfully execute” comes directly from fiduciary instruments like trusts and corporate charters. This fiduciary language imposes duties of loyalty, care, and good faith against self-dealing and abuse of power. This language migrated from trusts and corporate charters to English statutes mandating duties on public officials, to colonial American charters, to early state constitutions, to the U.S. Constitution and American statutes—creating legally enforceable duties at each stage.
We have argued that this fiduciary duty means that the president cannot pardon himself or his co-conspirators, because presidential action motivated by purely selfish, self-protective reasons would not constitute “faithful execution” of the laws. According to this reasoning, if the president pardons a co-conspirator, a prosecutor could continue the prosecution and if the defendant asserts his pardon in court, the prosecutor can challenge it. Similarly, if the president tries to remove an official like Mueller for solely bad faith reasons, that removal order would violate Article II’s “faithful execution” duty and therefore should be refused by Mueller. Mueller could seek a declaratory judgment from a court that any removal order is invalid. These moves would be unprecedented and would be an uphill battle but only because courts have overlooked the historical significance of the “faithful execution” language.
For pardons and removal, judicial review might be available to resolve these intrabranch conflicts. The same framework—the duty to faithfully execute the office and the laws—applies to potential disputes involving executive orders and sensitive material. Whenever there is a subpoena for confidential material, there is always a question about balancing interests in transparency against secrecy. When the president requests such information, it should ordinarily be an easy question: The president gets what the president asks for. But what if there is a serious question about whether the president wants the highly sensitive information in order to sabotage the investigation into his own alleged criminal conduct? To intimidate other potential sources and deter them from coming forward? To discredit the FBI with leaks and cherry-picking evidence? This abuse of power would be quintessential self-dealing and bad faith.
So if the leadership of the DOJ and the FBI are asked to hand over such sensitive information for what appears to be a corrupt purpose, what should they do? Don’t cooperate. Don’t resign either, because that runs the risk of someone else cooperating with a permanently damaging order.
The first step is for Rosenstein and others to be ready to file for a declaratory relief in case Trump uses their refusal as a pretext to fire them. The more that they can show that Trump’s demand was in bad faith and serving to undermine the execution of the laws, their claim for declaratory relief against their removal is strengthened. Even though declaratory relief is not as powerful as an injunction, it would still offer legal and political protection.
The second step is to seek that any declaratory judgment explicitly recognize that these DOJ and FBI officials have their own duty to faithfully execute the law. Like the president, federal officers are bound by their own fiduciary oath of faith, which is dictated by statute.
Courts should recognize that executive officials have their own fiduciary duties to be faithful to the Constitution, and a duty to refuse faithless orders meant to undermine the law. They should not be allowed to be removed for refusing such corrupt orders. The threshold for these claims must be high, but I believe that this confrontation meets that threshold. The clarity of the self-dealing and the danger to the intelligence community overcomes a presumption of executive authority.
What about a third step? Could the DOJ and FBI leadership proactively seek an injunction—a restraining order—against any DOJ or FBI official releasing certain classified material that would risk the safety of sources or the integrity of the investigation, just in case they are fired? There are too many legal problems with an executive officer seeking an injunction against the president or other officials. Who has standing? Can a court enjoin a president for official or discretionary conduct? Can a court allow one executive officer to enjoin other executive officers? United States v. Nixon doesn’t answer this challenging question. If Steps 1 and 3 succeed, Step 3 is unnecessary. If Steps 1 and 2 fail, Step 3 would certainly fail. And Step 3 has a risk of triggering a more significant political and legal backlash that some might use to support firing those officials for arguably trying to stretch their authority.
An increasing number of legal scholars, both liberal and conservative, have been arguing that the Constitution is a fiduciary document. Leib and I are demonstrating the fiduciary roots of “faithful execution.” The Constitution and the oaths of office are not just reminders about public service. They create legal duties that are enforceable by courts. Courts throughout American history have enforced the language of “faithful execution” or fiduciary duties on other public officials. This argument may seem like a longshot based on a novel constitutional theory, but it has deep foundations in English and American legal history, and the framers anticipated the risks of chief executives abusing their power. The present crisis over the rule of law should motivate judges to re-examine the original understanding of our fiduciary Constitution.
If the Constitution’s fiduciary duties are not invoked now, then when? Faith and trust in the intelligence community, in law enforcement, and in our republic is at stake.
Update, May 24, 2018: A sentence from an earlier draft of this piece that said no Democrats would be attending the first meeting has been deleted. As noted in the same paragraph, Democrat Adam Schiff will be attending.
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