Last week, Sen. Mark Warner, D-Va., warned that a “constitutional crisis” would erupt if President Donald Trump fires special counsel Robert Mueller. Trump has not said that he will fire Mueller, but he has made clear his displeasure with Mueller’s investigation; Trump’s allies have been attacking Mueller’s integrity for weeks; and Trump’s earlier firing of FBI Director James Comey indicates a willingness to take such an extreme step.
But how extreme a step is it? Would a constitutional crisis really occur, and if it did, why would it matter? The answers to those questions are not as obvious as most commentators, and some policymakers, seem to think.
“Constitutional crisis,” like “Russian collusion,” is not a technical legal term with an agreed meaning. What’s clear is that the temptation to define a constitutional crisis as any case in which the meaning of the Constitution is disputed deserves to be avoided. Virtually every clause of the Constitution is disputed, but crises are rare because Americans have shown they accept that ultimately the meaning will be settled by major government institutions.
The one undisputed constitutional crisis in American history was the Civil War. When the national government refused to recognize secession by the Southern states, an impasse arose because there was no way that the disagreement could be resolved through constitutional means. Federal property, like Fort Sumter, was claimed by the states and the national government alike. Because the South rejected the national government, no national institution — not the federal courts, not Congress — could resolve the dispute in a constitutional way. War resulted, with more than 600,000 deaths.
There have been a number of lesser crises that had a constitutional dimension but were not really constitutional crises because they were resolved through constitutional methods. The presidential elections of 1800 (eventually won by Thomas Jefferson), 1824 (won by John Quincy Adams), 1876 (won by Rutherford B. Hayes), and 2000 (won by George W. Bush) resulted in impasses because of legal or constitutional ambiguities about voting or voting procedures, but they were all resolved — by negotiation in the first three cases and by the Supreme Court in the fourth.
Two impeachments and one near-impeachment also have been cited as constitutional crises. Andrew Johnson was impeached — though acquitted by the Senate — after he tried to fire his secretary of war, Edwin Stanton, in violation of a statute passed by Congress to keep Stanton in office. Richard Nixon resigned before he was impeached, but he would very likely have been impeached for Watergate and related shenanigans. Bill Clinton was impeached for perjury after carrying on an affair with a White House intern. In all three cases, a political crisis surely existed. Normal politics stopped while the impeachments were resolved. But in all cases, the crisis was resolved through constitutional means, and most government institutions, from the Army to the Postal Service, functioned normally.
Another frequently cited example is Franklin D. Roosevelt’s court-packing plan. During the Great Depression, a right-wing Supreme Court thwarted some of Roosevelt’s efforts to pull the government into the modern era so that it could address the economic calamity. After his landslide election in 1936, Roosevelt sought to increase the size of the Supreme Court so that he could appoint like-minded jurists to outvote hard-liners. While Roosevelt’s efforts outraged people, Congress refused to go along with them, and Roosevelt backed down. Later, the court reversed course and was eventually dominated by Roosevelt’s own appointments. Roosevelt’s presidency included other moments of high constitutional drama, but a crisis never broke, because Roosevelt was able to accomplish what he needed to do while staying within the system.
If Trump fires Mueller, another Civil War is not going to break out. The closest historical analogy is Nixon’s firing of Watergate special prosecutor Archibald Cox in the Saturday Night Massacre of 1973. Nixon fired Cox to block the Watergate investigation.
At the time, many people declared that the firing sparked a constitutional crisis. And it surely felt that way — because no one knew how far Nixon would go to protect himself from further revelations and an eventual impeachment. But Nixon did not go very far. Cox was replaced by another special prosecutor, Leon Jaworski, who took up where Cox left off. Nixon ultimately obeyed an order from the Supreme Court to turn over the tapes. He did not pardon his subordinates, who went to jail. When informed that he would be impeached, he resigned rather than barricading himself in his office. The essential characteristic of a constitutional crisis — a disagreement about constitutional obligations that could not be resolved through constitutional means — was absent.
Whether (and how) a constitutional crisis might arise if Trump fires Mueller is rather mysterious. Trump may have the power to fire Mueller directly; even if he does not, he can ensure that someone else in the Justice Department fires Mueller, simply by firing anyone who refuses until someone does, as Nixon did. Mueller could try to contest the firing in court. If a judge ordered Mueller’s reinstatement, and Trump obeyed the judge, a crisis would be averted. If the judge ruled against Mueller, a crisis would also be averted. A crisis would occur only if a judge ordered reinstatement and Trump disobeyed. While a possibility, this seems unlikely.
Trump could also pardon everyone involved in the investigation. If he did, Mueller would have nothing to do. Again, there is no crisis.
Why, then, does Warner say that a constitutional crisis would occur? He may think that Congress will impeach Trump if he fires Mueller or issues blanket pardons. This does not seem likely for the time being, but even if impeachment hearings begin, we are still in the realm of the constitutional order. Congress might also try to thwart Trump in other ways — by refusing to confirm his appointments or pass legislation that he wants. But this seems less like a crisis than business as usual.
What Warner is actually saying is that serious political consequences will follow if Trump fires Mueller. That may well be the case. Trump’s already dismal poll numbers might fall further; congressional Republicans might pay a price at the next election. Or maybe not. But these consequences are political, not constitutional. If Trump and Republicans lose elections because Trump fires Mueller, then the constitutional system is working as it should.
If there is a constitutional dimension to a possible firing, it arises from a characteristic that Trump shares with Nixon: a demonstrated ruthlessness along with contempt for constitutional and political norms. This certainly may make us wonder what would happen if Congress or the courts really tried to put a halt to Trump’s obstruction of the Mueller investigation. Trump is more likely to disobey a judicial order, or to withhold documents sought by Congress, or even to barricade himself in his office after being impeached and convicted, than Barack Obama or George Bush ever would have been. And if any of those things happened, then a constitutional crisis would exist. Once the president flagrantly violates constitutional norms, then it is no longer clear which part of the government citizens are supposed to obey. While civil war remains as remote as ever, political unrest including possible violence and government paralysis seem like possible outcomes.
But all of this still seems pretty unlikely, and remote from where we are today. A lot would have to happen after Mueller is fired for a constitutional crisis to occur — not least, we would probably first need a Democratic victory in the 2018 congressional elections, without which impeachment hearings are unimaginable.
The element of truth in Warner’s admonition is that there is now a widespread feeling, especially on the left, that the constitutional system we have inherited has stopped operating properly. It allowed Trump to be elected despite his repudiation of many treasured constitutional values, and, even before Trump, the constitution seemed to lead too frequently to gridlock, interfering with governance rather than facilitating it.
Unfortunately, there is little we can do about this problem. The Constitution builds in its own guarantee of obsolescence by requiring voting thresholds for amendment that can rarely be met in a large, heterogeneous, and increasingly polarized society. Even as recognition of the infirmity of our constitutional system spreads, the people can do nothing about it. If a constitutional crisis exists, this is it, and it will be with us long after Trump leaves office.
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Eric Posner
Posner, the Kirkland and Ellis professor of law at the University of Chicago, is the author of the recently published book, The Perils of Global Legalism.