Legal Issues Raised by Trump Official Anonymous Op-Ed

On Sept 5, The New York Times published “I am Part of the Resistance Inside the Trump Administration,” an anonymous op-ed attributed to a senior member of the Trump administration. Here, Constitutional Law scholar Professor Michael McConnell discusses key legal issues raised by the op-ed.

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Stanford Law Professor Michael McConnell

Do you think the op-ed is credible?

“Anonymous” purports to be a “senior official” in the Trump administration who “want[s] the administration to succeed” and believes that many of his policies “have made American safer and more prosperous,” but who, along with “many” other senior officials, have used their positions to “thwart[] Mr. Trump’s more misguided impulses.” These “unsung heroes” have often, but “not always,” succeeded in steering the administration toward sound economic and foreign policies, behind Trump’s back. This raises the obvious question: Why would a person with these supposed motivations write the op-ed? The only possible effect is to alert Mr. Trump and undermine this internal “resistance.” We should therefore take this self-adulatory op-ed with a grain of salt.

Assuming that it is credible, what are the legal questions raised by this op-ed?

Contrary to Mr. Trump’s outraged claims, “Anonymous” has done nothing illegal, let alone “treasonous.” No law requires presidential underlings to be loyal, and treason is defined by the Constitution as “levying war against” the nation or “adhering to their Enemies,” giving them “Aid and Comfort.” Mr. Trump would do well to strike the word “treason” from his Twitter vocabulary. Promiscuous use of the term makes him look not only ignorant but authoritarian.

President Trump has asked that the op-ed be investigated. But should it be, given no crime was committed?

Trump has every right to investigate who wrote the op-ed. President Obama subjected his staff to lie detector tests for leaks. Just because Anonymous’ actions were not a crime does not mean Trump cannot take steps to unmask and fire him/her. A president is entitled to loyalty and confidentiality. Even Trump.

Is the president’s behavior, as described by Anonymous, illegal?

None of the president’s behavior that “Anonymous” reports (even assuming we believe the account) is an impeachable offense. The Constitution limits impeachment to “high crimes and Misdemeanors.” The writer’s claims that Trump “is impetuous, adversarial, petty and ineffective” fall very short of that.  The remedy for Trump is the ballot box. Voters will no doubt balance his indefensible character against a remarkable record of economic growth and other achievements, which “Anonymous” confirms.

Some have raised concerns about efforts to undermine the president. What do you make of that?

Claims by Trump supporters that the “Anonymous” op-ed is proof of a “deep state” outside of democratic control are bogus. The officials involved are not embedded bureaucrats protected by civil service laws or “independent” agency heads protected against removal. They are Trump’s own choices and he could fire them tomorrow.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. He served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit (2002-2009) before joining the faculty at Stanford.