Fortifying the Rule of Law: Filling the Gaps Revealed by the Mueller Report and Impeachment Proceedings

The separation of powers—the hallmark of our governmental structure—was intended by the Founding Fathers to protect the Rule of Law by ensuring that governmental power is shared among three equal branches of government, thereby restricting the unaccountable exercise of government power. Each of the three branches of the United States government is granted authority to perform specific functions, as well as additional powers “to protect itself [from other branches’ encroachment] and to police the other departments.” In other words, the Founding Fathers envisioned the separation of powers to be a “separation of functions” and, simultaneously, a “balance of power.” Special Counsel Robert Mueller’s Report on the Investigation Into Russian Interference in the 2016 Election (the “Mueller Report” or “Report”) illuminates a dangerous imbalance in this system. The Mueller Report documents instances in which the Trump Administration attempted to obstruct Mueller’s efforts. Trump ultimately moved to hide the Special Counsel’s full report from Congress via his executive authority. Despite the obvious impropriety, the other branches failed to hold the executive accountable for these actions. The release of the Mueller Report reveals fissures in our original separation of powers system that endanger the Rule of Law. It demonstrates how the existing infrastructure is inadequate to preserve the Rule of Law, especially in the face of our country’s most lawless President to date. President Trump’s multiple attempts to obstruct justice have shown a willingness to ignore and erode the traditional boundaries set by the separation of powers. Mueller’s analysis reveals a system with minimal repercussions for abuses of executive authority, one that requires significant bolstering if it is to truly protect the Rule of Law. In particular, the Mueller Report revealed the absence of timely judicial oversight of the executive branch, the repercussions of being unable to indict a sitting President, and the danger of a legal system which does not have an affirmative duty to report foreign interference into our elections. These three issues stand as both cause and consequence of the imbalance of power among the three branches of government. The executive branch has a seemingly unlimited amount of power that is not adequately policed by the remaining branches. As the Mueller Report reveals, the judicial branch is absent in its role policing presidential misconduct. Between these two extremes is the legislative branch, which has attempted to hold the President accountable without the judiciary’s enforcement mechanisms. However, these attempts, too, have fallen short. This paper uses the Mueller Report, news reports, and other sources to identify weaknesses in our legal system laid bare by the Trump presidency and to propose additional infrastructure and architecture to protect the Rule of Law. We propose three solutions to fill these gaps: first, expedited judicial review where constitutional questions are concerned; second, tolling the statute of limitations to address the indictment of a sitting President; and third, creating an affirmative duty to report foreign interference in our electoral processes. These are initial proposals meant as catalysts for further discussion and rumination. We recognize that they may need to be revised or reconsidered. It is, however, the goal of this paper to begin to foster that discussion and to be a starting point for necessary change.