The
“presumption of regularity.” It is a term largely unfamiliar to those
outside legal or governmental circles but one that all Americans should
now learn. Born of centuries-old common law, the presumption stands for
the idea that government officials are presumed to act lawfully and in
proper discharge their office – absent evidence to the contrary.
Every elected and appointed official enjoys this presumption. It is not easily squandered. It is meant to withstand errors in judgment and lapses in leadership. What it does not indulge is a clear pattern of abuse. Once the presumption collapses, the official is no longer fit for office.
This is the position that President Trump now finds himself in. What took Richard Nixon more than five years Trump has managed to accomplish in the narrow compass of four months. He has confirmed the worst fears of those who questioned his fitness for office. All the same, ten days ago, his staunchest critics might have called Trump a national disaster but essentially unimpeachable. Now it seems like just a matter of time before he is removed from office.
The announcement that Deputy Attorney General Rod Rosenstein has appointed Robert Mueller III, the former FBI director, to serve as special counsel overseeing the Russian probe only strengthens the spreading sense that Trump is finished.
What makes this appointment fatal to the president is not Mueller’s well-earned reputation for doggedness. It is the fact that the president’s own self-destructive behavior has altered the scope of the probe. No longer will the possible collusion between Russia and the Trump campaign be the focus.
Front and center will be whether the president has obstructed justice – first, by entreating Comey to “let go” of the Flynn investigation, and second, by firing Comey. Also at issue will be whether Trump’s tweet – “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!” – represents an attempt to tamper with a witness in an ongoing investigation.
A White House with a presumption of regularity might be able to weather these allegations. A “regular” president might be able to convince the American people that Mr Comey’s contemporaneous memo misstated or mischaracterized the president’s entreaty, which expressed a hope not a command. Of course, even a regular president might not succeed.
Republicans should ask themselves how many nanoseconds they would have let pass before drawing up articles of impeachment had President Obama asked Comey to “let go” of the investigation into Hillary Clinton’s use of a private email server.
But Trump has made his irregularity all too clear. When a president lies extravagantly – about millions of illegal voters and about phantom crimes committed against him by his predecessor in the Oval Office – he has squandered the right to be believed when it counts most. And when Mueller summons Trump to testify under oath, it is hard to imagine a president with such a reckless disregard of the truth steering clear of the pitfalls of perjury.
Every elected and appointed official enjoys this presumption. It is not easily squandered. It is meant to withstand errors in judgment and lapses in leadership. What it does not indulge is a clear pattern of abuse. Once the presumption collapses, the official is no longer fit for office.
This is the position that President Trump now finds himself in. What took Richard Nixon more than five years Trump has managed to accomplish in the narrow compass of four months. He has confirmed the worst fears of those who questioned his fitness for office. All the same, ten days ago, his staunchest critics might have called Trump a national disaster but essentially unimpeachable. Now it seems like just a matter of time before he is removed from office.
The announcement that Deputy Attorney General Rod Rosenstein has appointed Robert Mueller III, the former FBI director, to serve as special counsel overseeing the Russian probe only strengthens the spreading sense that Trump is finished.
What makes this appointment fatal to the president is not Mueller’s well-earned reputation for doggedness. It is the fact that the president’s own self-destructive behavior has altered the scope of the probe. No longer will the possible collusion between Russia and the Trump campaign be the focus.
Front and center will be whether the president has obstructed justice – first, by entreating Comey to “let go” of the Flynn investigation, and second, by firing Comey. Also at issue will be whether Trump’s tweet – “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!” – represents an attempt to tamper with a witness in an ongoing investigation.
A White House with a presumption of regularity might be able to weather these allegations. A “regular” president might be able to convince the American people that Mr Comey’s contemporaneous memo misstated or mischaracterized the president’s entreaty, which expressed a hope not a command. Of course, even a regular president might not succeed.
Republicans should ask themselves how many nanoseconds they would have let pass before drawing up articles of impeachment had President Obama asked Comey to “let go” of the investigation into Hillary Clinton’s use of a private email server.
But Trump has made his irregularity all too clear. When a president lies extravagantly – about millions of illegal voters and about phantom crimes committed against him by his predecessor in the Oval Office – he has squandered the right to be believed when it counts most. And when Mueller summons Trump to testify under oath, it is hard to imagine a president with such a reckless disregard of the truth steering clear of the pitfalls of perjury.
And now comes the news that in appointing Flynn his national security advisor, Trump disregarded not only the warnings of President Obama and Acting Attorney General Sally Yates, but the very fact that Flynn was already under criminal investigation.
Erratic behavior, extravagant narcissism wedded to a lack of discipline, and a pattern of arguably impeachable offenses: we can only hope that Mueller’s appointment sounds the death knell of this brief, dangerous experiment in presidential waywardness.
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