Don McGahn Is No Hero
I will not soon forget his role in getting Kavanaugh confirmed; this is the guy who sat behind him for that entire fiasco.
https://slate.com/news-and-politics/2019/04/don-mcgahn-hero-mueller-report-subpoena.html
Don McGahn Is No Hero
By Leah Litman
April 23, 201912:50 PM
snip//
Again, though: McGahn, Lewandowski, and Dearborn are not heroes in this story. Far from it. But it is fair to say that their refusals to carry out the president’s orders avoided the more serious constitutional crisis that would have resulted if the president had removed the special counsel, or if the president had fabricated evidence about events that transpired. Senior executive officials’ ability to disagree with the president—and more importantly, to disobey him—is partially what preserved whatever remains of the rule of law in our constitutional system.
Yet these same administration officials, particularly McGahn, have gone out of their way to secure the confirmation of judges to the federal bench who would not allow senior executive officials to disobey presidential orders without consequence. The judicial nominations McGahn has shepherded, particularly Supreme Court Justice Brett M. Kavanaugh, have championed the so-called unitary executive theory. Under that theory, all officials who carry out executive tasks are exercising the president’s powers and must be directly accountable to the president. Because the officials are merely arms of the singular unitary executive, this theory maintains, the president must be able to direct their actions by firing officials for their insubordination or their refusal to carry out the president’s policies.
By relying on this unitary executive theory, the judicial nominees of this administration have invalidated the statutory restrictions on the president’s ability to fire the head of the Consumer Financial Protection Bureau, as well as the statutory restrictions on the president’s ability to fire the head of the Federal Housing Finance Agency. The statutes governing those agencies prohibited the president from firing the heads of those agencies merely because the agency heads disagreed with the president’s policy or order. And by relying on the unitary executive theory, this administration’s judicial nominees—including Kavanaugh—held that the president must be able to fire officials who refuse to carry out his orders. Otherwise, the nominees wrote, there would be a serious constitutional problem.
The Mueller report indicates that these nominees have it backward. There would be a serious constitutional crisis if an authoritarian-leaning president had the ability to fire his appointees for refusing to carry out his authoritarian-leaning orders. Imagine if the president directed the CFPB to pursue enforcement actions only against companies led by executives who criticized him, or ordered the FHFA to subsidize homes only in Republican-controlled districts. We would avoid a more serious constitutional crisis if the president’s appointees refused to follow the president’s orders. Yet, McGahn has helped put in place judges who would demand this sort of fealty to this sort of president.
Administration officials should understand this reality given their experience in this White House. Yet their judicial nominations and judicial nominees have made clear they do not. And our constitutional system and the rule of law are at risk because of it.
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