Courts frequently engage with issues of presidential power at a certain level of abstraction: what the President in theory may require, or not require, to perform assigned high constitutional responsibilities. As in the presidential immunity decision, considerable weight is given to the conception of the “energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’” As the one who must make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system…. the greatest public interest” lies in affording him “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.”
This is all true enough on one level, but it skews a picture of what might be termed the presidency-in-fact, or the ways that the institution exercises its vast power that cannot be defended as in “the greatest public interest.” One such power is the power to weaponize: the use of government resources and authority to subdue or punish political or policy opponents. It seems important that courts bring the realities and risks of weaponization into the consideration of hard constitutional questions, such as now in the pending decisions on Trump’s firing for “cause” of Federal Reserve Board Governor Lisa Cook.
The actual law of the case is a muddle. As Jack Goldsmith has noted, the question of the removal power as it applies to the Federal Reserve is complicated, and there are not “a lot of legal materials to work with.” Trump is relying for this firing on “cause,” as required by statute, but also with some reference to his Article II authority. Scholars disagree about the breadth of that constitutional authority: Some find support for an expansive view in constitutional history, structure and practice, while others decidedly do not. The precedents are also unclear on what constitutes “cause” in a statute, like the Fed statute. Some case law seems to suggest that a president has considerable discretion, but not absolute authority to fire at will. Meanwhile the Court seems prepared to overrule precedent, Humphrey’s Executor, and adopt an expansive view of presidential removal power—but has indicated that the Fed may be different.
So however expansively or narrowly the Court may construe the “cause” requirement in other statutes, the Court must now confront in the Cook litigation how it should be should read in the particular case of the Federal Reserve. In this situation, where the law is unclear, it is not surprising that the answer on removal power questions will turn on views of its practical implications for the institution of the presidency. Prominent defenders of broad presidential removal power like Aditya Bamzai and Saikrishna Prakash are swayed in their conclusion by this concern with the governing consequences of limitations:
Without such a power, it is hard to see how the President could exert control—on behalf of an electoral coalition—over the vast American bureaucracy. Without such a power, it is easy to see how a temporary coalition could entrench long-term control over the bureaucracy by creating an officer insulated from presidential control through, for example, the conferral of statutory life tenure with removal only by impeachment. The Constitution’s conferral of removal authority on the President thus has a deep and important connection to the concept that electoral majorities should be able to control the executive branch.
The different perspective on the removal power I am arguing for takes into account the connection between this power and an executive’s “weaponizing” strategies. It is consistent with what Rick Pildes has described as a “form of realism” that “take[s] account of how institutions function in, and over, time.” Presidents have extensive resources at their command that they can, and do, weaponize to achieve their policy and political goals, including creating the “cause” for firing Senate-confirmed officials. In the Cook case, a federal official, Federal Housing Finance Agency Director Bill Pulte, used his position to develop an allegation, which he characterized as essentially proven and broadcast repeatedly on social media, that Cook committed mortgage fraud. Well-chosen for a weaponization assignment, Pulte is a Trump loyalist who lacks government experience but gave generously to the president’s re-election campaign and recently tweeted his view that “Donald Trump is the greatest.” On the basis of Pulte’s allegation against Cook, the President then fired her for this “cause.”
While the cited cause in the Cook case is mortgage fraud, an administration searching for cause in any other case, involving other officials, enjoys virtually limitless possibilities. The federal criminal code contains thousands of crimes that might be alleged; additional criminal offenses, estimated in the hundreds of thousands, are available for this purpose throughout the mass of federal regulations. One scholar who tried get a correct count of the crimes on the books concluded that “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime. That is not an exaggeration.”
Of course, many of those statutes will be highly unlikely to supply, in the normal course, what a weaponizing government will be looking for. Yet a fair number may well be fruitful in a hunt for allegations against a businessperson, an investor, a personal or commercial borrower, a former elected official, all taxpayers: any American, which is many Americans, whose activities in their personal and professional lives are subject to regulatory requirements. An administration so disposed can reasonably hope to develop out of this vast statutory and regulatory landscape the “cause” on which a presidential dismissal can be based.
The federal government is well equipped to function as this kind “opposition research” machine. Willing executive branch officials can dig into tax and financial records to which the government has access, adding as necessary what a dedicated research corps can find in publicly available information that can yield remarkable data if mined with a fair degree of sophistication (a simple Google search will rarely do the trick). In fact, administrations engage in this kind of “opposition research” when “vetting” nominees for potential confirmed positions. Their goal is to ensure that their nominees are fit for nomination, but also to anticipate issues that Congress may raise and that may present issues for confirmation.
A weaponizing government need not indict for these purposes, only allege. In the Cook litigation, the Department of Justice is arguing that a “cause” requirement only compels the president to give a reason, any reason. An allegation without more is reason enough. (The DOJ notes without a trace of irony. “[M]ere policy disagreement does not suffice, lest the removal restriction have no effect whatsoever.” Of course, “policy disagreement” over the Fed’s interest rate policy is precisely what drove the development of the cause for the Cook firing. Trump previously took a run at a claim of fraud directed at the Fed Chair, alleging that he may have been corruptly responsible for a lavish renovation of the Fed facilities. Unease in the market appears to have dissuaded Trump from pursuing this firing, and so the administration went after Cook.)
Courts may balk at inquiring into the motive behind a president’s stated reason for a weaponized firing. They can avoid this by problem by ensuring that just any reason is not reason enough. The Court has already once suggested, if not in the clearest of terms, that broad discretion is not absolute discretion, and in setting some boundaries, it might read “cause” to relate to conduct in office that bears directly on officials’ effective and lawful discharge of their duties. Examples might be absenteeism; improper ex parte contacts with parties affected by their decisions; or poor management reflected in staff complaints about abusive conduct or disruptive workplace behavior. Speeding tickets, unpaid parking fines, contestable charitable deductions, and like issues unrelated to the performance of their official responsibilities would not suffice as “cause,” nor would any issues of this nature that occurred prior to government service.
This close attention to weaponization strategies in resolving the issue of removal for “cause” is not rightly seen as an ad hoc adjustment of doctrine to address the unique case of Donald Trump. He has openly specialized as perhaps no other president in the politics of revenge and retribution and the blunt use of presidential power to practice it. But other presidents have resorted to the weaponization of government power. John F. Kennedy used the FBI, wiretaps, tax records and other government resources to force a major U.S. company (US Steel) to comply with this demand for price restraint. Kennedy had this to say to a friend and an official in his administration:
Do you know what you’re doing when you start bucking the power of the President of the United States? I don’t think US Steel or any other of the major steel companies wants to have Internal Revenue agents checking all the expense accounts of their top executives. Do you want the government to go back to hotel bills the time you were in Schenectady to find out who was with you? Hotel bills...nightclub expenses?
This is weaponization as a core strategy for a government seeking to work its will. There are many other examples, notably the Nixon Administration whose president was impeached in part because he used the FBI, and attempted to use the IRS, in weaponized fashion, and whose White House Counsel wrote a memo to the White House senior staff with recommendations to use government agencies to “screw our political enemies.” Trump is flaunting weaponization and taking it to unprecedented levels, and unlike his predecessors, he is not constrained by norms that other presidents either largely observed or felt compelled to honor in principle. But he did not invent weaponization.
For these reasons, there are lines developing in the debate over the Cook debate that seem entirely beside the point.
It is a mistake to think that whether Cook committed fraud, or just made a paperwork error, or did neither, should have any bearing on the removal issue. No one is arguing that she is above the law. If there is a legal question it can be pursued through normal law enforcement processes in which the facts can be developed and her defenses can be presented. Maybe there is a problem, maybe not. It is not at this stage clear, but what is clear is that the administration targeted her with an allegation of misconduct for the purpose of giving the president some basis for invoking a “cause” for dismissal.
It is also irrelevant to the case against removal that the charge has not been proven and so the dismissal for cause is premature. This claim just goads a weaponizing government into taking more drastic action against the targeted official. Already the official making the accusation has referred the matter to the Department of Justice for formal criminal investigation. It is a safe bet that this Department will not move quickly to examine the matter with expedition, to remove the cloud over Cook if evidence of wrongdoing will not support a charge. The more it is argued that the charge remains unsubstantiated, the more motivated a weaponized Department will be to push toward prosecution.
Weaponization is a feature of the powerful, “energetic executive” that requires attention in presidential power theory and jurisprudence. Rather than focusing only on what removal would mean for a president’s ability to meet the executive’s “take care” responsibilities, they must weigh this concern against the grave and intensifying risks of this particular form of abuse of power.