Time for the Shadow Government to Come Out of the Shadows

In law school we learned a basic aphorism: Hard facts make bad law. That means when cases present difficult factual situations in which the law requires an outcome that many people would consider unfair, courts are still obliged to follow the law. Otherwise, by bending the rules to accommodate an exception, they risk setting legal precedents that would in the long run be harmful.

So it is with the presidency of Donald Trump and the allegations of his unfitness for office by unnamed sources in journalist Bob Woodward’s forthcoming book and in the anonymous op ed written by what the New York Times describes as a “senior administration official.” Few, if any, presidencies have presented difficult facts like those of Donald Trump’s tenure in the White House. But do they justify the extraordinary actions being attributed to cabinet officials and White House staff?

I say no. Senior White House officials serve the president. They must advise the president and even argue strenuously against positions and actions the president might favor. But once the president acts, they cannot unilaterally substitute their judgment, ignore, or modify the president’s mandates. Otherwise they cross a dangerous line and weaken our constitutional structure now and for the future.

The Constitution provides three ways to remove a president from office: Impeachment, removal under the 25th amendment for inability to discharge the duties of the president, and election. By covering up the president’s alleged unfitness and employing workarounds to avoid implementing his decisions, the unknown executive branch staff members described in the news this week have effectively thwarted all three.

The Constitution provides for impeachment of a president for “high crimes and misdemeanors.” While there remains some uncertainty over what that standard means, if the allegations about the president are true and some of his actions had been allowed to proceed unabated, arguably they may have approached that threshold and prompted congressional inquiry and action.

Similarly, if the president is as unstable and unfit as allegedly described by White House insiders, his conduct, if known, might raise questions about his capacity to perform the duties of his office and trigger the 25th amendment process. If members of the president’s cabinet do indeed believe that the president is unable to perform the duties of his office, they have a constitutional duty to act pursuant to the 25th amendment, and not to cover-up the president’s unfitness.

Moreover, masking the president’s inability to serve and engaging in a sustained, concerted campaign to overrule his decisions hides critical information from the voters, information that could well determine whether or not they will curtail his power by voting for opposition candidates in the upcoming congressional election and return him to office in 2020.

Most importantly for the sake of our constitutional system, the so-called “resistors” are engaging in a dangerous cover-up and assumption of power by which an unelected, unaccountable, self-selected few insiders are substituting their judgment for that of the elected chief executive and commander in chief. Even if the president’s opponents may be inclined to applaud them for doing so, think about the effect on the future. What if the next group of advisers to this president favor the president’s agendas and allow him to act no matter how irrationally? And what if senior staff members in future administrations decide to ignore their president and usurp executive power?

Hard cases make bad law, and the Trump staffers may think they are doing what’s best for the country. But rather than perpetuate the maladministration they are said to describe, they should follow the paths carved out in the Constitution. If the president is as unstable and unfit as alleged, then they should either work internally within the cabinet to initiate the 25th amendment process, or resign and openly and publicly tell Congress and the public about his incapacity. There is no place in our constitutional republic for shadow governments, even if well-intended, nor any place in our democracy for hiding such dangerous truths about the president from the voters – or at least diluting them under cover of anonymity.