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Constitutional Crisis

Gaius46 said:
A Constitutional crisis comes up when a problem arises that the Constitution cannot solve.

Trump has the authority to fire Mueller so there would be no Constitutional crisis. And even if he didn't he can removed from office. Now if he was impeached and removed and refused to go and used the army to back up his refusal that would be a Constitutional crisis.
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I know what you mean, but the wording should be "when a problem arises that the Constitution has no remedy for."

I would suggest that there is an infiltration so complete that those with the authority to use the constitutional remedy will not. Or, "when a problem arises that the Constitution has remedy for, but no official will use the remedy."

Rexedgar said:
My understanding is that DJT cannot directly terminate the Special Counsel, but has to go through the AG.
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That seems correct to me and Thoreau72 nails the dynamics of it , in time.

Thoreau72 said:
I understand that nobody wants to talk about it, but I would say that when Congress passes illegitimate legislation to render the Fourth Amendment moot, we already have a Constitutional Crisis. Judge Napolitano has pointed that out in several of his books, including 2011 book "It is dangerous to be right when the Government is Wrong".

I would say that when Congress declares that Habeas Corpus is no longer valid, we already have a Constitutional Crisis.

Wake up and smell the napalm, it's been burning for years.
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The phrase "constitutional crisis" isn't a legal term at all, but it does serve to describe several well known and acknowledged types of government, legal, national security and executive emergencies.
But in the end, wouldn't it be fair to say that "constitutional crisis" means to the Constitution what "psychotic lapse" means to mental illness? Even a seasoned medical professional might struggle a bit to lay out the specific set of morbidities that clearly define such a lapse but they can certainly tell one when they see one.

If congressional Republicans fail to hold Trump accountable for firing Mueller, I daresay that would accurately describe a crisis of fidelity, but it would naturally follow that if we are in a crisis of fidelity, then we must by necessity also be in a concomitant operational crisis, because the former paints us into the corner where we are confounded by the latter, thus the two are inseparable.

Political scientist Keith Whittington describes it as a set of “circumstances in which the constitutional order itself is failing.”
In government itself, an "operational crisis" might be when the Constitution can't tell us how to resolve a political dispute.
Or, there is a "fidelity crisis" where the Constitution lays out the rules to tell us what to do but those rules aren't being obeyed.

But what about when the Constitution fails to constrain political disputes within some accepted semblance of normalcy?
Representatives and leaders from both parties insist that they are acting constitutionally, but that it's their opponent which is not.
You might be reminded of The Civil War.

Clearly the one thing that all of these have in common is some kind of tipping point, where most if not all are forced to recognize that we are testing the legal and constitutional order of governance.
Maybe it is better to use a term like "constitutional rot" instead, where faith in the values and structural integrity of the Constitution itself have clearly eroded despite the legal structure remaining in place.

But if a president is attempting to fire his way out of facing the wheels of justice, does that legal structure still have the necessary integrity to uphold the values in the Constitution or not?

Constitutional rot therefore must eventually lead to a constitutional crisis, both of fidelity and in terms of operation itself.
A termite infested building might stand for decades after the bugs have set in but one day your Aunt Claire might go crashing through the kitchen floor and wind up head over heels in the basement among the rotted timbers.

A host body cannot restore life after a parasitic infection has hollowed out and destroyed the organs.
If we do not apply prophylactic measures, the host body succumbs needlessly for want of antibiotics and one reaches the tipping point where it is too late, and the victim dies.

Termite infested wood does not grow solid again.
Rancid meat doesn't return to freshness.

Fidelity can be restored.
Rot however, cannot.
 
Here's a thought... if President Trump somehow engineers the firing of Mueller, could not the Congress pass a Joint Resolution appointing him as their Special Counsel? There is already precedent for taking such a step as Congress passed a joint resolution creating two special counsels (one Democrat, one Republican) to investigate the Teapot Dome Scandal in 1924.
 
Checkerboard Strangler said:
The phrase "constitutional crisis" isn't a legal term at all, but it does serve to describe several well known and acknowledged types of government, legal, national security and executive emergencies.
But in the end, wouldn't it be fair to say that "constitutional crisis" means to the Constitution what "psychotic lapse" means to mental illness? Even a seasoned medical professional might struggle a bit to lay out the specific set of morbidities that clearly define such a lapse but they can certainly tell one when they see one.

If congressional Republicans fail to hold Trump accountable for firing Mueller, I daresay that would accurately describe a crisis of fidelity, but it would naturally follow that if we are in a crisis of fidelity, then we must by necessity also be in a concomitant operational crisis, because the former paints us into the corner where we are confounded by the latter, thus the two are inseparable.

Political scientist Keith Whittington describes it as a set of “circumstances in which the constitutional order itself is failing.”
In government itself, an "operational crisis" might be when the Constitution can't tell us how to resolve a political dispute.
Or, there is a "fidelity crisis" where the Constitution lays out the rules to tell us what to do but those rules aren't being obeyed.

But what about when the Constitution fails to constrain political disputes within some accepted semblance of normalcy?
Representatives and leaders from both parties insist that they are acting constitutionally, but that it's their opponent which is not.
You might be reminded of The Civil War.

Clearly the one thing that all of these have in common is some kind of tipping point, where most if not all are forced to recognize that we are testing the legal and constitutional order of governance.
Maybe it is better to use a term like "constitutional rot" instead, where faith in the values and structural integrity of the Constitution itself have clearly eroded despite the legal structure remaining in place.

But if a president is attempting to fire his way out of facing the wheels of justice, does that legal structure still have the necessary integrity to uphold the values in the Constitution or not?

Constitutional rot therefore must eventually lead to a constitutional crisis, both of fidelity and in terms of operation itself.
A termite infested building might stand for decades after the bugs have set in but one day your Aunt Claire might go crashing through the kitchen floor and wind up head over heels in the basement among the rotted timbers.

A host body cannot restore life after a parasitic infection has hollowed out and destroyed the organs.
If we do not apply prophylactic measures, the host body succumbs needlessly for want of antibiotics and one reaches the tipping point where it is too late, and the victim dies.

Termite infested wood does not grow solid again.
Rancid meat doesn't return to freshness.

Fidelity can be restored.
Rot however, cannot.
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If congressional Republicans fail to hold Trump accountable for firing Mueller, I daresay that would accurately describe a crisis of fidelity, but it would naturally follow that if we are in a crisis of fidelity, then we must by necessity also be in a concomitant operational crisis, because the former paints us into the corner where we are confounded by the latter, thus the two are inseparable.
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A constitutional crisis would be holding Trump accountable for exercising his Article II power by Congress, which would be a constitutional crises over the seperation of powers doctrine.
 
Tennyson said:
A constitutional crisis would be holding Trump accountable for exercising his Article II power by Congress, which would be a constitutional crises over the seperation of powers doctrine.
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Filling vacancies?
 
Checkerboard Strangler said:
That's part of Article II.

Please clarify exactly what part of Article II you're referring to, or give an example.
Cheers :)
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Comey, Mueller, etc al., are all under the Executive Branch, which is Article II, not Article I or III.
 
Yes, Nixon ordering the special prosecutor removed was a constitutional crisis, as the constitution neither prohibited the action, nor permitted it.

When a president uses his authority in a way that could be deemed an abuse of power, you have a constitutional crisis.
 
joG said:
Would it be un Constitutional to fire mueller? Not smart, maybe. But not legal?
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It'd depend on the reason for firing him. See 28 CFR §600.7(d):

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.
 
Tanngrisnir said:
But, of course, there would most definitely be a constitutional crisis. Firing a guy in order to end an investigation that could put the President in legal jeopardy? Crisis, big time.
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What would happen if Trump did not fire Mueller, but cut off funding? Mueller is still allowed to investigate on his own dime. The reason you cut off the money is because a large number of hack Democrat lawyers; sub-contractors, appear to be over billing the US government. These are very serious charges so we will need to investigate. Nobody has been fired. If they quit this is fine, since it is free country.

The analogy is we hire a contractor, who then hires other subcontractors. The original contractor is there to fix the White House lawn; Russian collusion. After they are done, instead of ending the contract, they take it on themselves to trim all the cherry trees and dust the White House, to the tune of $millions of extra. These extra were never part of the original contract but appears to be a scam to steal tax payer money. If this was true, sort of like hypothetical collusion, it would need to be investigated. We may even need to to break into all the lawyer subcontractors offices, to gather data, since conspiracy to defraud the US government and the tax payer is a very serious charge. Mueller is never fired.
 
wellwisher said:
What would happen if Trump did not fire Mueller, but cut off funding? Mueller is still allowed to investigate on his own dime. The reason you cut off the money is because a large number of hack Democrat lawyers; sub-contractors, appear to be over billing the US government. These are very serious charges so we will need to investigate. Nobody has been fired. If they quit this is fine, since it is free country. [/quolte]

Nah. That doesn't appear to happening at all.
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Tennyson said:
A constitutional crisis would be holding Trump accountable for exercising his Article II power by Congress, which would be a constitutional crises over the seperation of powers doctrine.
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There is always the possibility the President may have exercised his power and authority in Article II in such a way as to constitute as a "high crime and misdemeanor." Obstruction of justice, including attempted obstruction, is a "high crime" or a "misdemeanor." The Constitution vested to Congress and the political process the question of whether to impeach a President for exercising Article II power in such a manner as to constitute as a "high crime" or "misdemeanor." The impeachment power of Congress is a feature of checks-n-balances on the Executive Branch created by the Constitution.
 
NotreDame said:
There is always the possibility the President may have exercised his power and authority in Article II in such a way as to constitute as a "high crime and misdemeanor." Obstruction of justice, including attempted obstruction, is a "high crime" or a "misdemeanor." The Constitution vested to Congress and the political process the question of whether to impeach a President for exercising Article II power in such a manner as to constitute as a "high crime" or "misdemeanor." The impeachment power of Congress is a feature of checks-n-balances on the Executive Branch created by the Constitution.
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That would be getting into the mens rea of the whys of Trump's actions.

There was nothing in the manner of firing Comey that would satisfy an obstruction charge with what is publicly known.
 
Tennyson said:
That would be getting into the mens rea of the whys of Trump's actions.

There was nothing in the manner of firing Comey that would satisfy an obstruction charge with what is publicly known.
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Hmmm....depends. First, there is a difference between violating a federal statute and receiving a conviction and impeachment. I am not convinced Congress is limited to impeaching a President only on basis of the statutory elements criminalizing the conduct. However, it is very likely Congress would closely adhere to the statutory elements, or some form of them, when drafting articles of impeachment for the offense of obstruction of justice.

Despite this, the Constitution vested to Congress the power of impeachment for "high crimes and misdemeanors." Hence, ultimately, Congress would decide whether there is sufficient evidence that Trump exercised his power in a manner constituting as obstruction of justice, and Congress is not merely limited to the act of firing Comey.
 
NotreDame said:
Hmmm....depends. First, there is a difference between violating a federal statute and receiving a conviction and impeachment. I am not convinced Congress is limited to impeaching a President only on basis of the statutory elements criminalizing the conduct. However, it is very likely Congress would closely adhere to the statutory elements, or some form of them, when drafting articles of impeachment for the offense of obstruction of justice.

Despite this, the Constitution vested to Congress the power of impeachment for "high crimes and misdemeanors." Hence, ultimately, Congress would decide whether there is sufficient evidence that Trump exercised his power in a manner constituting as obstruction of justice, and Congress is not merely limited to the act of firing Comey.
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I am not relying on a federal statute other than an impeachment and removal would need some justifiable basis of a malfeasance of the high office to succeed, and so far all of the issues are based on criminal law as a basis. The last time a President was inpeached was over a criminal law. The time before that was purely political.
 
Tennyson said:
I am not relying on a federal statute other than an impeachment and removal would need some justifiable basis of a malfeasance of the high office to succeed, and so far all of the issues are based on criminal law as a basis. The last time a President was inpeached was over a criminal law. The time before that was purely political.
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My prior remarks are not inconsistent with your commentary. As I said previously, the Constitution vests to Congress the discretion to impeach a President for exercising its Article II powers in a manner constituting as a "high crime and misdemeanor." I also strongly suggested "malfeasance of the high office" may be needed for impeachment.

But the Constitution left to the political process of Congress to decide what constitutes as "malfeasance," and whether it is necessary. Given the present political climate, I can foresee a Democratic controlled House and Senate having a more relaxed standard of what constitutes as "malfeasance." Yet, the Constitution left impeachment to the political process, including the perils of that process.
 
NotreDame said:
My prior remarks are not inconsistent with your commentary. As I said previously, the Constitution vests to Congress the discretion to impeach a President for exercising its Article II powers in a manner constituting as a "high crime and misdemeanor." I also strongly suggested "malfeasance of the high office" may be needed for impeachment.

But the Constitution left to the political process of Congress to decide what constitutes as "malfeasance," and whether it is necessary. Given the present political climate, I can foresee a Democratic controlled House and Senate having a more relaxed standard of what constitutes as "malfeasance." Yet, the Constitution left impeachment to the political process, including the perils of that process.
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I agree with that.
 
NotreDame said:
My prior remarks are not inconsistent with your commentary. As I said previously, the Constitution vests to Congress the discretion to impeach a President for exercising its Article II powers in a manner constituting as a "high crime and misdemeanor." I also strongly suggested "malfeasance of the high office" may be needed for impeachment.

But the Constitution left to the political process of Congress to decide what constitutes as "malfeasance," and whether it is necessary. Given the present political climate, I can foresee a Democratic controlled House and Senate having a more relaxed standard of what constitutes as "malfeasance." Yet, the Constitution left impeachment to the political process, including the perils of that process.
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Regardless of who controls Congress, I'd have to say that using the power of your office to fire a special counsel in order to protect yourself from prosecution would qualify as "malfeasance", wouldn't you?
 
Cordelier said:
Regardless of who controls Congress, I'd have to say that using the power of your office to fire a special counsel in order to protect yourself from prosecution would qualify as "malfeasance", wouldn't you?
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Yes. But you could find universal agreement on this point but disagreement as to whether the evidence sufficiently supports such an allegation. I suspect Democrats, naturally, would have a more relaxed view of what constitutes as sufficient evidence supporting such an allegation than Republicans.
 
NotreDame said:
Yes. But you could find universal agreement on this point but disagreement as to whether the evidence sufficiently supports such an allegation. I suspect Democrats, naturally, would have a more relaxed view of what constitutes as sufficient evidence supporting such an allegation than Republicans.
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I think the standard of evidence required would depend more on the reasons cited for firing Mueller. Unless the Administration presented an airtight case for his dismissal or immediately replaced him with someone equally qualified (it's hard to think of who that might be), I think firing Mueller would just serve to open up a new front to fight on for an already besieged Presidency.
 
jet57 said:
We don't have a constitutional crises nor are we likely to. That is stuff made up by the likes of Mark Levin and other far right antiAmericans who want to have a constitutional convention to rewrite the whole thing to suit their agenda.
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A constitutional crises means a conflict that can’t be clearly settled by the three branches of government: legislative, congressional. Judicial. In the case of Mueller, he is actually a fourth branch of government answerable to no one yet with a charter to investigate everyone.
 
chuckiechan said:
A constitutional crises means a conflict that can’t be clearly settled by the three branches of government: legislative, congressional. Judicial. In the case of Mueller, he is actually a fourth branch of government answerable to no one yet with a charter to investigate everyone.
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That's not quite accurate... Mueller is answerable to Deputy AG Rosenstein and is an executive appointee. His charter is laid out pretty clearly in Order No. 3915-2017.
 
Cordelier said:
That's not quite accurate... Mueller is answerable to Deputy AG Rosenstein and is an executive appointee. His charter is laid out pretty clearly in Order No. 3915-2017.
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ii and iii belong back in the Salem witch trials. They were very successful then as they are now.

It’s a corrupt fishing expedition I’d expect to see in Chicago or Venezuela.
 
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