Thursday, June 15, 2017

The Biggest Jurisprudential Mistake Made in Politics

Guest Blogger

Scott Shapiro

Twitter exploded three days ago when Chris Ruddy, publisher of Newsmax and friend of Donald Trump, reported on CNN that the President was thinking of firing the Special Prosecutor, Robert Mueller. There was predictable outrage (this is Twitter, of course): How could the President fire the special prosecutor when he is likely to be (and we now know is) a target of Mueller’s investigation? The blowback was even stronger than when Trump fired Comey, for Mueller had only been appointed last month and could not possibly have given the President cause for dismissal.

Some responded that the President is the chief executive of the United States. He has the legal authority to dismiss anyone who works in the executive branch. He’s the Decider. (Let’s ignore the subtleties of whether or exactly how he could do this. For discussion, see here and here). Alan Dershowitz, for example, has argued that “President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.” The idea seems to be that someone can’t be criminally responsible for a legally authoritative action. “A president cannot be charged with a crime for properly exercising his constitutional authority.”

Unfortunately, this response misses an important jurisprudential distinction, one that is routinely conflated in political discussions: having a legal power to act does not imply a legal permission to exercise that power. You can do some act in the sense that the law gives you the power to do it, and you can’t do that very same act in the sense that the law forbids using that power.

Two simple examples perfectly illustrate this point. Jurors have the power of jury nullification, meaning they can acquit against the weight of the evidence.  But judges instruct jurors not to use this power, instead directing them to decide cases using only the evidence admitted during the trial and the legal instructions provided. Jurors have the legal power of jury nullification, but it would be legally wrong for them to exercise it.

Or suppose you sign a contract with Donald Trump to buy one of his properties. But before you close, he signs a second contract with another person and closes on that deal first.  He will have successfully sold the property to someone else, even though he violated his contractual duty to you not to do so.

As philosophers have long recognized, people can have a right to do wrong. The law may give persons a legal right to perform some action even though there are situations where exercising that right would be wrong. In such cases, you have both a legal right (understood as a power) that you don’t have the right (understood as a privilege) to exercise.

Thus, even if the President has the authority to fire the special prosecutor, he is under a duty not to exercise that power for the purpose of obstructing justice.  He can fire Mueller and he can’t fire Mueller.  In this way, the President is no different from a juror or an unscrupulous real estate developer.

Scott Shapiro is Charles F. Southmayd Professor of Law and Professor of Philosophy. You can reach him by e-mail at scott.shapiro at

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