U.S. President Donald Trump has been accused of bringing on a constitutional crisis many times, but what is a constitutional crisis, exactly — and is the U.S. actually in one?
On Wednesday, Trump asked former attorney general Jeff Sessions to resign and appointed Sessions’ chief of staff, Matthew G. Whitaker, in his place.
Whitaker will formally be overseeing the Robert Mueller investigation into whether Trump actively colluded with Russia during his 2016 presidential campaign — that is, if Whitaker does not recuse himself like Sessions did, putting deputy attorney general Rod Rosenstein in charge of the investigation.
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Whitaker has said he has no plans to recuse himself from the investigation, but he has been critical of the Mueller investigation in the past, saying in a CNN op-ed that the investigation is close to crossing a red line by broadening its scope and musing about cutting off the investigation’s funding as one way to slow it to a crawl.
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After Sessions’ resignation, Senate Minority Leader Chuck Schumer said any interference in the investigation would be considered a “constitutional crisis.”
A constitutional crisis is when the constitution cannot be enforced and no longer outlines what should be done, but according to McGill University professor and U.S. constitution specialist Jacob Levy, there is no formal definition of a constitutional crisis.
“(A constitutional crisis happens) when the different branches of government reach wildly different conclusions about their own respective authority, and there’s no one with clear authority to decide,” he said. “Or when one of the branches seems to be abusing its power with no one to do anything about it.”
A possible constitutional crisis is currently happening in Venezuela, where, in March 2017, Venezuelan President Nicolas Maduro overrode the power of the National Assembly, his country’s legislative body, with the help of a friendly Supreme Court.
Venezuela’s constitution is no longer being followed, and there is no clear path back to democracy for the country.
According to Levy, the U.S. is already in a constitutional crisis.
“The crisis is upon us,” he said. “We’re in uncharted territory here.”
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The first whiff of a constitutional crisis came when Trump fired former FBI director James Comey, says Levy, because it appeared the president was taking active steps to end the investigation into himself.
“If you have a Congress that says we can’t impeach unless the president has a crime hanging over him, and he is able to stop himself from being investigated for crimes, then you have a slow-motion, unfolding crisis the whole time,” he said.
Levy explained that when the U.S. constitution was created in 1787, it placed very few constraints on the president except for impeachment, which is up to Congress to enact. The thinking was that presidents wouldn’t abuse their powers because Congress would impeach them if they did.
However, the constitution was created before there were political parties and was written for a non-partisan system.
“It was assumed Congress would have an institutional loyalty to itself, that it would constantly be pushing against the president,” Levy said.
That clearly isn’t the case in modern times, and with a Republican majority in Congress, Levy says there is no way the legislative body would ever pass impeachment.
“As soon as it becomes possible for one party to control the Congress and the presidency, really important parts of the constitutional machinery don’t make sense anymore,” Levy said.
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With the appointment of Whitaker taking place not through a Senate confirmation hearing and not chosen in the usual line of succession — as Whitaker was formerly chief of staff — Levy says Trump has gone stretched the rules further than ever before in U.S. history.
The last time the U.S. was seriously considered in a constitutional crisis was when the “Saturday Night Massacre” happened, in which former president Richard Nixon continuously fired appointees in the Department of Justice through the line of succession as each of them refused to fire the special prosecutor investigating Nixon.
“Nixon didn’t just pick a chief of staff and say: ‘You’re the attorney general,'” Levy said. “Trump’s willingness to stretch the limits of his power and use the office to protect himself is unparalleled in American history.”
Although there is a president seemingly instructing an investigation into himself and the only tool to check his power — impeachment — is relatively out of sight, Levy points out that there are ways to resist.
He says it is very likely that as soon as the new attorney general gives directives to others, lawsuits will be filed claiming he does not hold his position legally and therefore doesn’t have the authority to do so.
With the Democrats now controlling the House of Representatives, legislators can also subpoena a great deal of relevant information, which would gain publicity, even if impeachment remains a challenge due to a Republican Senate majority.
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Schumer has also said Democrats will propose a bill to protect the Mueller probe, and Levy says there may be enough support in the Senate to confirm.