Mark Weaver on Article II Powers

The Columbus Dispatch asked Mark Weaver from our firm to write an op-ed about the Article II power of the President to hire/fire Justice Department employees, including the special prosecutor.

Mark think's it would be a bad idea -- but manifestly legal -- to do so. Click here or read below.

Status of special counsel raises some issues

Presidents have power to appoint or fire anyone in executive branch

Mark R. Weaver

Ohio winters remind us that water has three forms — the hot liquid we drink, the steam we exhale and the ice we clear from the driveway. Federal government power is similarly constituted in three different ways, between the legislative, executive and judicial branches.

At the Constitutional Convention of 1787, the Founding Fathers wrestled with how to fairly distribute power among government actors. The notion of power resting in one entity evoked painful memories of the royal yoke these leaders had recently thrown off their countrymen. They resolved the problem by distributing federal lawmaking power to Congress, the execution of those laws to the president and the authority to resolve constitutional disputes to the courts.

Which leads to the question of whether a president has the authority to fire a special prosecutor or appoint an attorney general who may forestall a special prosecution. Some claim that “rule of law” prevents a president from doing so. Like the first glaze over a freezing pond, this position may seem substantial at first glance, but a few tentative steps reveal cracks in the support.

Unfortunately, amid the latest season of “Let’s All Fight About Trump,” calm discussions about presidential power get whipped into political catcalling.

These issues existed before the Obama and Trump follies and will continue thereafter. The Constitution gives all executive-branch authority to one person — currently, Donald Trump. All executive-branch officials, from the lowest file clerk to a four-star general, derive their power from the president’s will and can be stripped of that power on the president’s whim. Only the most limber of legal yoga practitioners can twist the straight iron rod of executive-branch power into the pretzel notion that such power belongs to someone other than the executive himself.

It may feel like a conflict to acknowledge that a president can fire an attorney general or a special prosecutor poking around in his political attic. Yet the Constitution permits it.

Indeed, other branches have constitutionally permitted conflicts. A congressman speaking on the House floor can defame and falsely ruin the reputation of a private citizen. Yet the Constitution protects that official from lawsuit or prosecution.

And when a legal dispute emerges surrounding the pay raises of the members of the Supreme Court, the justices themselves are permitted — indeed required — to resolve it. The conflict is manifestly constitutional.

Lest you think that a president’s decision to fire a special prosecutor would have no check or balance, it’s crucial to remember that, in constitutional physics, every government action has an equal and opposite reaction. In response to presidential powers of appointment and termination, Congress maintains the powers of confirmation, budgeting and even impeachment. And, for cases properly brought, the Supreme Court may judicially review.

Some suggest notions of propriety or long-held custom require us to find another way forward. But ignoring the express mandate of the Constitution to step around the pothole of a mere conflict trips the traveler into the adjacent abyss of anarchy.

One of history’s greatest Ohioans — Chief Justice William Howard Taft — wrote in a landmark decision about executive power, “the President is empowered by the Constitution to remove any executive officer appointed by him.” Yes, this includes firing Deputy Attorney General Rod Rosenstein or special counsel Robert Mueller.

I’ve worked as a special prosecutor in a dozen Ohio counties. I’m familiar with the political pressures that come with the territory. And, when I served as a presidential appointee at the Justice Department in Washington, I saw how the attorney general wields power. Yet the origin of that power is the president.

We can disagree and take political actions when a president exercises his powers. But we should not — and cannot — claim he lacks the power to do so.

After all, our founding document contains more than just helpful hints. These are the powerful and compulsory tenets of a nation of laws. In a republic such as ours, the Constitution is no parchment tiger.

Mark R. Weaver is a Columbus attorney and communications adviser. He was formerly deputy attorney general of Ohio. He is the author of the recently released book "A Wordsmith's Work." @MarkRWeaver