In this part we move from a focus on the president and the White House to the most consequential relationship in the executive branch that the president heads: the one between the president and the Department of Justice, headed by the attorney general.
Some of the most serious problems in American constitutional government arise when the president or the attorney general, or both together, use the formidable federal law enforcement power for corrupt ends—for example, by using a criminal investigation to harass or punish political opponents, or by countenancing lawbreaking by the president or senior executive branch officials. Watergate and related events implicated both problems and led to important reforms. The Trump presidency has revealed that in some respects these reforms were successful, and in others they were inadequate. It has also revealed serious gaps in guidance on how the Justice Department and the FBI should approach problems of possible presidential criminality or presidential action contrary to the national security interests of the United States.
This part focuses on five major problems that emerged or grew untenable during the Trump presidency:
Of the multitude of norms that Donald Trump has broken as president, perhaps none has caused more commentary and consternation than his efforts to defy Justice Department independence and politicize the department’s enforcement of civil and criminal law. In this chapter, we examine these efforts and the damage they caused, and we propose reforms. In Chapter Eight, we discuss Trump’s threats to Justice Department independence in his attacks on the special counsel.
Background
The Constitution vests “the Executive power” in the president. This means, among other things, that it authorizes the president to enforce the law and makes him or her responsible for doing so. The Constitution also assigns the president the duty to “take Care that the Laws be faithfully execute.” [268] This provision requires the president to comply with the law, but it is also a basis for the president’s authority to interpret and enforce the law. What’s more, the Constitution has long been interpreted to charge the president with conducting foreign affairs and protecting the national security. Congress can regulate these powers—to an uncertain degree—through enactment of substantive laws (such as anti-bribery laws and the prohibition on torture) and through direct regulation of the executive branch (such as through the Foreign Intelligence Surveillance Act).
The president is a busy person, and the bulk of his or her powers and duties are exercised in the first instance by the attorney general of the United States, who heads the 115,000-person Department of Justice. The attorney general presumptively controls the law enforcement function for the executive branch and also advises the president and other executive officials to ensure that they comply with the law. (The attorney general typically delegates the latter function to the Office of Legal Counsel.) The attorney general also has important responsibilities related to national security, including the control and supervision of the FBI.
The powers and responsibilities of the attorney general are supported by Article II of the Constitution and by congressional statute. The president remains in charge, however. “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws,” the Supreme Court noted recently. [269] In making decisions about law enforcement and law compliance, presidents can seek and rely on legal advice from whomever they like, including the counsel to the president in the White House. The president has the formal authority to second-guess the attorney general’s legal judgment, to direct the attorney general to enforce the law in a certain way, and to fire the attorney general if he or she refuses to comply with the order. In practice, as we shall see, matters are somewhat more complex.
The attorney general’s powers, and especially the power to enforce the criminal law, are among the most important ones in the government. As chief prosecutor, the attorney general “has more control over life, liberty, and reputation than any other person in America,” as Attorney General Robert Jackson once famously said. The attorney general or a prosecutor under his or her command can start a financially ruinous investigation and then can secure a grand jury indictment based on a “one-sided presentation of the facts,” Jackson noted. The attorney general can also “pick people that he thinks he should get” and then order investigations and search the federal criminal code for a crime. [270]
For present purposes, the most serious worry about prosecutorial and law enforcement discretion is that it may be exercised to serve the political interests of the administration—either by investigating or prosecuting enemies, or by refusing to do so against allies who deserve scrutiny. This worry is exacerbated by the fact that the attorney general, who has presumptive control over that discretion, is a senior member of the president’s Cabinet and often one of the president’s friends or political advisers.
The problem is made yet more difficult by the fact that law enforcement is inevitably and properly “political” in the sense of reflecting the values and priorities of the elected president. As Watergate special prosecutor Archibald Cox, a man with credibility on this issue, put it in a 1974 hearing, “the treatment of the law and facts simply cannot be separated from ideas of economic, social, or political—in the higher sense of the word—philosophy.” [271] Permitting political priorities to inform law enforcement is not the same thing as permitting partisanship to do so. Prosecutions must always be based on “law and merit, and not on considerations of party affiliation, political image-making, or White House approval or influence,” as John F. Kennedy’s White House counsel, Ted Sorensen, noted in the same 1974 hearing. [272] And yet “politics is necessarily tied up with policy, with one’s concept of the public interest and response to the public will,” Sorensen acknowledged. “A president who campaigns on a ‘law and order’ issue, or a narcotics or civil rights or organized crime issue, must not be confronted with an Attorney General of sharply differing views appointed for a fixed term by his predecessor.”
The line between properly political considerations and impermissibly partisan ones can be elusive and contested. Consider some examples. In November 1907, not long before the election of 1908, President Theodore Roosevelt determined that his administration would not sue U.S. Steel even though its acquisition of the Tennessee Coal & Iron Co. almost certainly violated the Sherman Antitrust Act. Roosevelt determined that such a lawsuit might hinder the economic recovery after the financial panic of 1907. This was a plausible judgment for Roosevelt to make, and a legitimate exercise of presidential discretion about relative priorities. But it was also controversial politically, in part because it had the consequence of benefiting Roosevelt’s party in the presidential election that year.
The second example concerns Eric Holder’s decision as Barack Obama’s attorney general to reopen a preliminary investigation against some officials, including career officials, who were involved in the CIA enhanced interrogation program during the George W. Bush administration. Holder was acting in part on a recommendation by the Justice Department’s Office of Professional Responsibility, and he made clear that his review would not target “anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel.” [273] His action was nonetheless criticized for two reasons. First, career prosecutors, not political appointees, had previously reviewed all the cases in question and decided not to go forward with prosecution. Second, as former CIA General Counsel Jeffrey Smith noted, “the decision of one administration to prosecute career officers for acts committed under a policy of a previous administration” might “set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers.” [274] The reopened investigation lasted three years and resulted in no new prosecutions.
The dangers of interference may be clear enough if the president directs prosecutions of an opponent in a political campaign, a prominent supporter or funder of that campaign, or opposition political party organizations. Other cases may be murkier and less clearly “political.” For example, a president might have committed to bring to justice certain “special interests” whom he or she has charged with ripping off consumers, engaging in deceptive and abusive lending practices, or putting dangerous drugs on the market. He or she campaigned on that commitment, pledging that his or her Department of Justice will not allow those misdeeds to go unpunished. Is a later directive to the attorney general to open investigations an improperly “political” one or the implementation of a defensible policy of redressing criminal corporate misconduct? Doubtless the president will realize the political benefits of redeeming a campaign promise—and of doing what he or she had said he or she would do. Is this political, or, perhaps more to the point, improperly political?
Other complications have little to do with partisan politics but pit the independent law enforcement process against legitimate presidential policy objectives. A president may discover that the Justice Department is pursuing an investigation, and on the brink of bringing charges, against a foreign corporation based in a country with which the United States is engaged in sensitive trade or national security discussions. The head of that state raises concerns about the case and suggests that it is an impediment to good relations and the resolution of outstanding issues. Should the president agree to look into the matter and even ask the attorney general to determine whether the investigation could be slowed down or reconsidered?
From the beginning of the nation until the 1970s, these challenging problems of possible abuse of law enforcement powers—by the president, the attorney general, or U.S. attorneys—were regulated by congressional oversight, including the confirmation process; by journalists covering enforcement actions; by elections; and by the self-restraint bolstered by the weakest of norms.
This system did not survive Richard Nixon’s administration. For decades prior to Nixon’s presidency, FBI Director J. Edgar Hoover used the bureau’s manifold and unregulated tools—electronic and other forms of surveillance, aggressive investigation, threats, and the like—to harass and discredit various political groups and individuals that Hoover deemed “subversive.” Hoover often did so with the approval of attorneys general, and sometimes to aid the political agenda of presidential administrations. And then came Nixon. Hoover refused to play ball in most of Nixon’s criminal machinations. But Nixon’s corrupt attorneys general, John Mitchell and Richard Kleindienst, did. They and the president transformed the Justice Department into a lawbreaking arm to advance the president’s political agenda. The administration’s many well-known Watergate-related machinations are the famous example. But there are others, including Nixon’s order to Kleindienst to drop a lawsuit against ITT, which had donated $400,000 to his reelection campaign.
Historical reforms to address these abuses came in the 1970s, both in the executive branch and in new laws enacted by Congress. Inside the executive branch, one important reform was the Attorney General Guidelines first promulgated during Gerald Ford’s administration. These guidelines, and elaborate implementing guidance known as the Domestic Investigations and Operations Guide (DIOG), establish the rules that govern the bureau’s investigative and intelligence collection activities. The guidelines and the DIOG address the problem of politicized investigations in guidance for “sensitive investigative matters.” A sensitive investigative matter is one that is inherently politically sensitive or poses a danger of the appearance of politicization. These matters may concern investigations of domestic public officials, political candidates, religious or political organizations (or their members) , or new media, or they may have an academic nexus. [275] The main prescription in the DIOG is that any official in the Justice Department who considers pursuing a sensitive investigative matter must first report up the FBI chain of command.
Another relevant executive branch reform is the White House–Justice Department “contacts policy” initiated by President Ford in 1974. [276] Every administration since then has issued its version of this policy. While each administration’s policy differs in details, they all basically prohibit White House staff from contacting agencies, including the Justice Department, about investigations or enforcement actions. To simplify only a bit, all communications related to Justice Department prosecutions and investigations and other enforcement actions must take place between the Office of White House Counsel and the Office of the Attorney General. The policy has a number of standard exemptions—for policy issues, for matters important to the president’s duties (especially involving national security), and for contacts “appropriate from a law enforcement perspective.” Most notably, the contacts policy does not purport to apply to the president.
The guidelines, the DIOG, and the contacts policy might not seem like much. But as bolstered through decades of public affirmation and scrutiny, they were successful in fostering powerful norms of White House noninterference in, and nonpoliticization of, Justice Department criminal investigations. [277] In particular, it became generally accepted that partisan and personal considerations should play no role in investigating or prosecuting cases. [278]
A rare but notable violation of these norms occurred when the Justice Department under George W. Bush ordered the midterm firing of nine U.S. attorneys. Attorney General Alberto Gonzales testified that “nothing improper occurred” because “U.S. attorneys serve at the pleasure of the president,” and because “[t]here is nothing improper in making a change for poor management, policy differences or questionable judgment, or simply to have another qualified individual serve.” [279] Importantly, however, Gonzales acknowledged that “[i]t would be improper to remove a U.S. attorney to interfere with or influence a particular prosecution for partisan political gain.” [280]
The Justice Department’s Office of the Inspector General and Office of Professional Responsibility issued a report that “found significant evidence that political partisan considerations were an important factor” in the removals. [281] The “most troubling” removal concerned the U.S. attorney for the District of New Mexico, David Iglesias. The report concluded that Iglesias was removed due to complaints from “New Mexico Republican members of Congress and party activists about Iglesias’s handling of voter fraud and public corruption” involving Democratic Party officials or interests and that the Justice Department removed Iglesias without any inquiry into his handling of the cases. The report noted that “Department leaders” had a “responsibility to ensure that prosecutorial decisions [are] based on the law, the evidence, and Department policy, not political pressure,” and concluded that the leaders “abdicated their responsibility to safeguard the integrity and independence of the Department by failing to ensure that the removal of U.S. Attorneys was not based on improper political considerations.” It also speculated that the pressure on Iglesias might have constituted obstruction of justice or criminal liability for “honest services” mail and wire fraud. [282]
One remarkable element of this episode was its vindication of the independence norm, since the president’s undoubted constitutional power to fire U.S. attorneys did not prevent the norm violation from producing a scandal that forced Gonzales to resign in September 2007. The Justice Department clarified the legal context governing political interference in prosecutorial decisions after he resigned. The department offered its official views on the relevance of the law of obstruction of justice and mail and wire fraud in the conclusions of a special attorney, Nora R. Dannehy, who was appointed by Gonzales’s successor, Michael Mukasey. In an analysis that the Obama Administration endorsed and relayed to Congress, Dannehy established that political intervention in the criminal justice system by Justice Department officials can in some instances violate relevant law and emphasized the sweep of the norms against politicized law enforcement beyond legal prohibitions. [283]
Section 1503 of Title 18 of the U.S. Code punishes anyone who “corruptly … influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” [284] Dannehy interpreted the statute to penalize “only forward-looking conduct.” [285] In the context of the Iglesias firing, she concluded that Section 1503 proscribed two types of conduct. First, it prohibited pressure on a U.S. attorney to “accelerate his charging decisions in [a particular case] or initiate voter fraud investigations to affect the election.” And second, it prohibited an administration’s action to “influence a judicial proceeding by removing” a U.S. attorney in order to replace him with one “who would act in a manner aimed at influencing the due administration of justice.”
Dannehy further concluded that the evidence did not show that the New Mexico politicians who contacted Iglesias, or the Justice Department and White House officials involved in his firing, had violated the obstruction statute so construed. She acknowledged that New Mexico Sen. Pete Domenici was “in part politically motivated” to seek Iglesias’s removal. But she concluded that “a public official does not violate the law [of obstruction] by seeking the removal of a United States Attorney for his failure either to pursue a particular case the official believes is legitimate or to pursue certain types of cases the official believes should be brought, even if the public official's motives are partisan and inconsistent with the values of [the Justice Department].”
The Dannehy letter is a summary of a presumably more fine-grained but unpublished legal analysis, and thus is not as clear or helpful as it could be. However, it appears to permit several conclusions.
First, an administration can lawfully bring political considerations to bear in determining the “types of cases” it wishes to bring. It could, for example, prioritize voter fraud prosecutions as a class and remove a U.S. attorney for failing to adopt this priority.
Second, the primary obstruction of justice statute, 18 U.S.C. § 1503, applies to the law enforcement actions of executive branch officials. This was an important general conclusion of the Dannehy letter, even though she fleshed out the meaning of obstruction only in the context of electoral interference. As Dannehy construed the statute, the firing of a U.S. attorney, or other pressure by a public official, can “influence, obstruct, or impede … the due administration of justice” within the meaning of 18 U.S.C. § 1503 where its purpose is to accelerate a decision in a specific case affecting an election. She also stated an important limitation on this conclusion when the official has a good-faith belief that the prosecutorial decision in question is “legitimate.” Dannehy is here addressing the problem of mixed motives. In the case of obstruction of justice by a private person, the general rule is that the mens rea element is satisfied in a mixed-motives case “if the offending action was prompted, at least in part, by a ‘corrupt’ motive.” [286] Dannehy appears to conclude that the rule for “public officials” is the opposite: A belief in the legitimacy of the law enforcement action in question suffices to defeat obstruction of justice even if the motives are otherwise partisan.
Third, and importantly in light of this limitation on statutory obstruction of justice, Dannehy emphasizes that even if there is legal room for partisan motivation or considerations, Justice Department “principles”—specifically those of “fairness and justice”—weigh strongly against “undue sensitivity to politics.” Dannehy criticized “[Justice Department] leadership” for its failure to uphold those principles, and for exhibiting “undue sensitivity to politics,” because it “never determined whether the complaints about Mr. Iglesias were legitimate.” Even though neither Domenici nor the Justice Department nor the White House broke the law by seeking Iglesias’s removal, department officials should have examined the merits of Domenici’s claims, and their failure to do so “bespeaks [their] undue sensitivity to politics.” As a matter of department policy, they were required to “answer not to partisan politics but to principles of fairness and justice.” The letter concluded with an affirmation of the attorney general’s commitment to “ensuring that partisan political considerations play no role in law enforcement decisions of the Department” (emphasis added).
Fourth, Dannehy addressed the relevance of the statute at 18 U.S.C. § 1346, which provides that for purposes of mail and wire fraud, the term “scheme or artifice to defraud” includes “a scheme or artifice to deprive another of the intangible right of honest services.” She interpreted its scope narrowly, concluding that there was no scheme to get Iglesias “to use his Office in return for anything of value, including his continued employment.” She also concluded that “honest services fraud does not embrace allegations that purely political interests may have influenced a public official's performance of his duty.” She did not elaborate on this finding but appeared to suggest that an official could not be charged with “honest services” fraud on the basis of a purely subjective intent to achieve a political goal. A prosecution on this theory would require the involvement of others, as in the case of an official acting for political purposes in return for “anything of value.” [287] The Supreme Court subsequently narrowed the scope of the “honest services” statute to reach only bribes and kickbacks, but the Dannehy analysis highlights the challenges of drawing clear, practical lines against impermissible “politics” in law enforcement. [288]
None of the developments described in the last few pages—the Attorney General Guidelines, the DIOG, the White House contacts policy, and the Justice Department’s legal conclusions about inappropriate department interference in ongoing prosecutions—purported to apply to or govern the president. Nonetheless, in the post-Watergate years, and despite Article II, a norm also developed to inhibit presidential involvement in, and comment on, pending investigations.
A rare violation of this norm prior to the Trump administration came when President Obama commented on the ongoing FBI investigation of Hillary Clinton’s emails. “I don’t think it posed a national security problem,” he said. “This is not a situation in which America’s national security was endangered.” [289] The director of the FBI at the time, James Comey, later noted that Obama’s comments “seemed to absolve [Clinton] before a final determination was made” and could lead an outside observer to reasonably wonder, “how on earth could his Department of Justice do anything other than follow his lead?” [290] Obama’s comments were a contributing factor—there were, of course, many others—to the sharp contestation over the legitimacy of the Clinton case’s resolution.
In addition to these executive branch rules, policies, and norms, Congress in the 1970s enacted numerous laws designed to tamp down on the political use of prosecutorial power. The 1978 enactment of the Foreign Intelligence Surveillance Act, on top of a 1968 law that required prior judicial approval for wiretaps and bugging, went a long way toward ending politically motivated surveillance in a criminal investigation. [291] (We discuss the contested case of the Carter Page Foreign Intelligence Surveillance Act application in Chapter Nine.) Statutory restrictions on Justice Department investigators’ (and the president’s) access to IRS tax records were designed to put an end to decades of politically motivated fishing expeditions for tax or other crimes. [292] Other reforms designed to end politically motivated investigations and prosecutions included the Privacy Act, [293] an improved Freedom of Information Act, [294] and statutory inspectors general in major departments with semi-independence and broadly defined authority to pursue “abuse.” [295] Finally, Congress in 1976 made the FBI director a single-term, ten-year appointment in order to prevent too much power from amassing in one director (a la Hoover over the decades) and to give the director more political independence from the president and the attorney general. [296]
It is worth noting one sweeping reform that Congress declined to implement in the 1970s. In the wake of Watergate, Sen. Sam Ervin introduced a bill that would have made the Justice Department an independent agency headed by an attorney general appointed for a six-year term and removable by the president only for malfeasance. “I have become convinced of the utter necessity of removing the department, insofar that it is possible, from the play of partisan politics,” Ervin said at the time. [297]
There was widespread opposition to the bill from renowned former executive branch lawyers, including Archibald Cox, Lloyd Cutler, Nicholas Katzenbach, Herbert Wechsler, Ramsey Clark, Burke Marshall, former Justice Arthur Goldberg, J. Lee Rankin, and Theodore Sorensen. Many doubted that the bill was constitutional. They noted that an independent Justice Department might jeopardize the vigorous enforcement of national policies as reflected in elections. Many worried that an “independent” Justice Department would be captured by interest groups or Congress. They noted how often the department engaged in controversial prosecution or law enforcement efforts, and that the decisions to undertake and defend those actions must lie in a politically accountable actor. And they believed that Watergate showed that a vigorous press, robust congressional oversight (including confirmation hearings), and a strong public ethic were the best antidotes to the problems of political corruption of the Justice Department’s tools. Although these former officials opposed making the department formally independent, they offered various smaller-scale reforms, and many of them supported an independent counsel for conflicts of interest with the White House.
The Trump Era
President Trump “has engaged in a scorched-earth assault on the pillars of the criminal justice system in a way that no other occupant of the White House has done,” noted the New York Times , accurately, in February 2018. [298] Matters have grown worse since then. We assess both what the president said and did, and how officials in the White House and Justice Department responded to his provocations. (We set aside until Chapter Eight the president’s very serious norm violations when he interfered in Special Counsel Robert Mueller’s investigation.)
Trump from the beginning made clear that he either did not understand or did not respect the norms that had governed White House relations with the Justice Department since the 1970s. He pined for an attorney general who would protect him from legal jeopardy. And he expressed dismay that he could not have his way with the Justice Department. Trump famously stated that he had an “absolute right” to do what he wanted with the Justice Department. [299] This is an overstatement even of the president’s formidable power under Article II to control Justice Department initiatives.
But what is more interesting is the distance between Trump’s formal powers and the norms that got in the way of his exercising them. “You know, the saddest thing is that because I’m the president of the United States, I am not supposed to be involved with the Justice Department,” Trump said in late 2017. [300] “I am not supposed to be involved with the F.B.I. I’m not supposed to be doing the kind of things that I would love to be doing.” [301] Trump reportedly did not understand “why he cannot simply give orders to ‘my guys’ at what he sometimes calls the ‘Trump Justice Department.’” [302]
Trump frequently defied the settled norms at the level of rhetoric, especially with regard to those he regarded as adversaries. He called for the Justice Department to reopen the Hillary Clinton email investigation and related issues, and for new investigations into what he described as “the illegal acts that took place in the Clinton campaign & Obama Administration.” [303] He also called for investigations of the origins and use of the “Steele dossier,” Democratic Party opposition research that came into the possession of the FBI and was used in the investigation of Trump-Russia connections; the Clinton Foundation’s involvement in a Russian agency’s acquisition of the Uranium One mining company; and Clinton aide Huma Abedin for her alleged actions related to official emails found on her husband’s computer. Trump suggested that the Justice Department should criminally investigate former FBI Director James Comey for leaking documents and allegedly lying to Congress; that John Kerry should be prosecuted for talking to Iranian leaders; and that former CIA Director John Brennan, Justice Department officials Lisa Page, Andrew McCabe, Peter Strzok, and Bruce Ohr, and Fusion GPS, a research firm involved with the production of the Steele dossier, should be investigated as well. Trump also broke norms when he commented on pending prosecutions that did not involve political enemies, including the military prosecutions of Bowe Bergdahl and Edward Gallagher, and the criminal prosecution of alleged terrorist Sayfullo Saipov.
In addition to these public threats, Trump allegedly pressured White House officials to order the Justice Department to prosecute Comey and Clinton. The department did not prosecute Comey. Comey was subject to three Justice Department inspector general investigations, which found fault with some of his actions related to the Hillary Clinton email investigation and the investigations of Trump and his campaign (all of which we discuss in detail in Chapter Nine). These investigations and their fruits were broadly accepted, since the inspector general, Michael Horowitz, has a reputation for independence and integrity, and because his reports were comprehensive and even handed. Horowitz also investigated and criticized McCabe, Strzok, and Page, but the Justice Department declined Trump’s entreaties to do more. (The department considered prosecuting McCabe for lying to the FBI but never did so. A large hurdle to prosecution was that the president’s incessant criticism of McCabe tainted the matter.)
As for Clinton, the department appears not to have heeded the president’s calls for a new, full-fledged investigation. In 2017, Rep. Bob Goodlatte urged the Justice Department to appoint a special counsel for allegedly unlawful actions of the Clinton Foundation, including in the Uranium One matter. [304] Then–Attorney General Jeff Sessions responded in a letter that he would have senior prosecutors “evaluate” the issue, a step that does not, in Justice Department jargon, constitute an investigation. [305] It is hard to tell if this was a standard noncommittal letter of the type the Justice Department often sends in response to a congressional request, or an effort to assuage Trump and perhaps pressure Clinton. In any event, Sessions turned the matter over to a Utah federal prosecutor, John Huber, who was first appointed by President Obama. In 2019, Attorney General Barr announced that Huber’s work related to the Clinton matter was “winding down and hopefully we’ll be in a position to bring those to fruition.” [306] Yet, even if the department takes no action against Clinton, as seems likely, and even if Sessions’s letter to Congress was not a response to pressure from Trump, the “evaluation” of the matter was generally and understandably seen as politicized and retaliatory due to Trump’s rhetoric.
Concerns that the Justice Department is in the president’s pocket on law enforcement matters related to his political agenda has only grown in the last year of his presidency. Trump has dozens of times complained about Special Counsel Robert Mueller’s treatment of three close allies: former National Security Adviser Michael Flynn, who pleaded guilty to lying to the FBI; Trump’s ally Roger Stone, who was convicted of obstruction of justice and lying under oath (and whose sentence was later commuted by Trump); and former Trump campaign manager Paul Manafort, who was convicted of tax and bank fraud.
Barr subsequently took actions related to two of these convictions—overruling career prosecutors to seek a more lenient sentence for Stone, and successfully moving to dismiss the case against Flynn even though Flynn pleaded guilty—that were largely viewed as caving to pressure from Trump. This critique took hold even more firmly when, after Barr’s decision in the Stone case, Trump tweeted, “Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought.” [307]
Barr appeared to recognize that the president’s tweets tainted his decisions and made them seem political. “I’m not going to be bullied or influenced by anybody … whether it’s Congress, newspaper editorial boards, or the president,” Barr told ABC News following Trump’s congratulations. [308] Barr insisted that Trump “has never asked me to do anything in a criminal case” but emphasized that the president’s interference via tweets made it “impossible” for him to perform his role as attorney general. “I cannot do my job here at the department with a constant background commentary that undercuts me,” he said, articulating one important reason for the norms in this area. “I think it’s time to stop the tweeting about Department of Justice criminal cases,” Barr added. But Barr’s public statements did not stop the president’s tweets and norm breaking through other channels, and the attorney general did not make further critical public comment.
Another prominent example of Trump’s interference was his attacks on John Bolton in connection with Bolton’s tell-all memoir about his time as national security adviser. Prior to publication, Trump described the book, which was very critical of him, as “highly inappropriate” and said that “if the book gets out, he’s broken the law and I would think he would have criminal problems. I hope so.” Trump said he discussed the matter with Barr even while emphasizing that it was Barr’s call. When Barr’s Justice Department filed a lawsuit a few days later seeking to enjoin publication, the New York Times reported that “the aggressive move is the latest instance in which the Justice Department under his watch has appeared to wield its law enforcement power in ways that align with Mr. Trump’s views of perceived political allies or adversaries.” [309] The department lost its motion but won some important points in the ruling. But win or lose, once again Trump’s intervention made it seem likely that the Justice Department was acting at the president’s behest to serve his political and personal goals.
Another episode that raised serious questions about politicization involved Trump’s firing of the acting U.S. attorney for the Southern District of New York, Geoffrey Berman. Berman was a career prosecutor appointed by a federal court to replace Preet Bharara, whom Trump fired in 2017. Bharara had investigated matters close to Trump that Trump often complained about. One focus was Michael Cohen, Trump’s former lawyer. Cohen pleaded guilty to (among other things) campaign law violations related to the Trump presidential campaign, and he alleged in court that Trump directed his actions in the commission of one of those crimes involving payments to two women to keep them quiet during the campaign. Berman was also investigating Trump lawyer Rudy Giuliani and had filed charges against two Giuliani associates related to the Ukraine matter. In addition, he was investigating a state-owned bank in Turkey, and Trump had reportedly pledged to Turkish president Recep Tayyip Erdoğ an that he would intervene in the case.
Barr originally announced that Berman would be stepping down (not fired) and replaced by Trump friend Jay Clayton, the chairman of the Securities and Exchange Commission. When Berman balked, Trump fired him. After a day of intense controversy in which many observers suspected that Trump or Barr was improperly intervening in cases that affected the president, Barr shifted course and announced that Berman would be replaced by his chief deputy, career prosecutor Audrey Strauss. Berman announced that the “proud legacy” of his office could be in “no better hands” than Strauss’s. [310]
Barr’s letter announcing the change then affirmed “the Department’s applicable standards, policies, and guidance,” which included an acknowledgment of a norm against “improper interference with a case.” [311] Barr stated further that
[g]oing forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General, whom I am authorizing to review any such claim. The Inspector General’s monitoring of the situation will provide additional confidence that all cases will continue to be decided on the law and the facts.
It is impossible to know whether Barr reiterated the department’s norms of law enforcement on principle, or whether he was retreating to this ground in the face of intense criticism and the notable absence of support from Republican allies in Congress. The reaffirmation of the norm in this context was in any event especially notable.
And then there was the investigation by John Durham, under the close supervision of Barr, of the origins of the 2016 investigation into the Trump campaign and the 2017 criminal and counterintelligence investigations of the president. An investigation of the investigators can be viewed as appropriate in the sense that the investigations of Trump and his campaign was unprecedented and politically fraught in ways that implicate long-held concerns about the impact of secret government surveillance on democratic processes. The public needs to know how the investigations transpired so that it can have confidence that the power exercised by the FBI was not abused and also so that the FBI can learn how to approach these problems better in the future (issues we take up fully in Chapter Nine). But here too the president’s incessant aggressive criticism of the FBI investigation against him has contaminated the legitimacy of the investigation. And in this instance, Barr exacerbated the problem by violating norms—the breach of which he decried in others in analogous circumstances—when he often prejudged the case through insinuation and innuendo. [312]
President Trump has also taken aim at American companies that have drawn his ire. There are numerous allegations that the president attempted to intervene directly in the merger of AT&T and Time Warner, due to his animus toward a Time Warner subsidiary, CNN. Google and Facebook have both found themselves in the president’s crosshairs as well: Trump suggested in June 2019 that they should be sued. [313] Trump has claimed that Google is “trying to rig the [2020] election” [314] and has claimed repeatedly that Facebook and other social media companies are biased against conservatives.
The record of Trump’s attempts to bend the Justice Department to serve his will is troubling but, in the end, the results were mixed. On the one hand, there were remarkable instances when Trump failed to accomplish his aims to direct Justice Department action—an ineffectiveness that Trump frequently bemoaned, in public and private. Trump’s appointees did not carry out his wishes to prosecute his enemies; and legal rules and norms often operated to check untoward department actions that seemed to serve Trump’s interests, especially in the Mueller investigation, which we examine fully in Chapter Eight. But, especially over the fourth year of his term, Trump appeared to succeed in influencing the Justice Department in self-serving ways. So, while the norms and laws withstood Trump’s unprecedented onslaught for much of this time, there were clear signs by 2020 that they were under serious strain. And by any measure, Trump’s attacks on Justice Department independence did enormous damage to the department’s reputation and to the legitimacy of many of its actions.
Reform
The question in the aftermath of the Trump presidency will be whether it is enough to rely on the relative resilience of law and norms, and Trump’s eventual departure from office, to guarantee a return to a presidency that maintains the principles of independence that should govern the relationship between the president and the White House, on the one hand, and the Department of Justice, on the other.
Trump and Nixon, their presidencies separated by fifty years, could be viewed as outlier presidents whose abuses did not cause the collapse of norms of independence but instead served to test them and, eventually, prove their durability. Some observers might argue that the experience of the Trump presidency, like the “national nightmare of Watergate,” is a shock to the system from which it emerged challenged but stronger.
Maybe. But as we explained in Chapter One, developments in national politics have weakened, and threaten to continue to weaken, the norms of independence. Intense polarization and the rise of populism pose a heightened risk that, in a bitter battle between partisans, the executive branch may weaponize the law enforcement process. Those same features feed the toxic suspicion that the press is being abused. Donald Trump’s taste for weaponizing law enforcement is open and notorious, and his expression of it is crude.
We cannot assume that this tendency will remain limited to Trump, or will always be so crude. Democratic candidates competing to face Trump in the general election professed an analogous willingness to do what is necessary, with less solicitude for norms, to meet the threat, as they perceive it, of the Trump presidency. For example, some pledged to direct the prosecution of Trump if they succeed him in the White House or have prejudged the merits of the legal case against him. Even allowing for a measure of hyperbole on both sides of the political divide, unduly politicized law enforcement—and, nearly as important, its appearance—has become an increasingly large question about the operation of the criminal justice system.
That said, reform in this area is hard for two reasons. First, it is impossible to muzzle a president who insists on breaching norms of noninterference in Justice Department actions through his public pronouncements. And second, as noted earlier and explained further in the remainder of this chapter, there is no sharp line between acceptable political factors that inform law enforcement decisions and unacceptable politicization of law enforcement.
With these problems and challenges in mind, we propose three main areas for reforms.
Stronger Protections Against Improperly Politicized Law Enforcement
Dannehy insisted that nonlegal Justice Department “principles” of “fairness and justice” weigh strongly against “undue sensitivity to politics” even in cases where the law does not forbid it. While these principles, or norms, are no doubt prevalent in the Justice Department, Dannehy cited no written source, and there is no obvious one. We propose reforms within the executive branch to strengthen these norms by making them explicit.
First, we propose to amend the “Supplemental Standards of Ethical Conduct for Employees of the Department of Justice” that apply on top of the ethical rules that apply to all executive branch officials. [315] The new section would be directed specifically to “Improper Political Considerations” and would draw practically word-for-word from the Dannehy letter. As we present it more fully in the appendix, the regulation should prohibit department employees from acting “in the performance of their duties on the basis of the improper partisan political purpose of influencing an election to public office” and should expressly reiterate that these employees “answer in all their actions not to partisan politics but to principles of fairness and justice.” The regulation should also define “improper partisan political purposes to influence an election” to include the definitions specified by Dannehy.
Second, we propose to amend the guidance supplied by the Justice Department’s “Principles of Federal Prosecution” in the department’s Justice Manual , and its more specific “Federal Prosecution of Election Offenses,” in order to bring the Dannehy principles to the attention of law enforcement officials involved in such cases. The manual’s discussion of the principles governing the exercise of prosecutorial discretion now defines an “impermissible consideration” in investigations and prosecutions to include decisions improperly based on a “person’s … political association, activities, or beliefs.” [316] The revision we propose would supplement and expand on this guidance with a discussion of the U.S. attorneys firing case and its resolution. That discussion would mirror our proposed revisions to the Justice Department’s “Supplemental Standards of Ethical Conduct,” and it would fit naturally in the section of the manual currently entitled “Federal Role: Prosecution, Not Intervention.” [317] Under our proposals, the Dannehy principles would be incorporated into both the specific guidelines for the investigation and prosecution of election offenses and, more generally, the department’s ethical standards.
Third, and finally, 5 C.F.R. § 2635.702 prohibits all federal employees—not just Justice Department or White House officials—from using a position of authority to “coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself ... or persons with whom the employee is affiliated in a nongovernmental capacity.” [318] The regulation is structured to apply broadly to prohibit the use of office for “private gain” [319] or to give “preferential treatment.” [320] Although it focuses most specifically on the illicit service of “financial interests,” it also extends to “any benefit, financial or otherwise ” (emphasis added). Actions within the Justice Department, or external pressure on the department, to initiate a prosecution, or influence its course, for the partisan political purpose of affecting an election certainly confer a “benefit” on the political party in a position to seek this advantage. The same party obtains this benefit and also “preferential treatment” if, because of this same improper intervention, its escapes legal accountability for actions that would normally be investigated and prosecuted.
The regulations are nonetheless not as clear as required on this point. We propose that Section 2635.702 be revised to deal specifically with the “improper partisan political purpose of influencing an election to public office.” The proposed revisions appear in relation to the current prohibition on the “use of public office for private gain.” Improper partisan political purposes are one such misuse of official authority. The prohibition we would add in clear terms is cabined along the lines discussed previously: It is not partisan political considerations more generally that the reformed ethical proscription would reach, given the difficulties we have suggested of applying a standard that is too broadly cast. The reform’s focus is the impropriety of partisan political motivation to influence the outcome of an election to public office.
Obstruction of Justice
As Dannehy made clear, the primary obstruction of justice statute, 18 U.S.C. § 1503, applies to the law enforcement actions of executive branch officials, including the attorney general and his or her subordinates. (It is a harder question, addressed in Chapter Eight, whether and how the statute applies to the president.) While impossible to show, there are good reasons to believe that the possibility of criminal obstruction of justice had an impact on executive branch officials who resisted President Trump’s various efforts to use law enforcement tools to serve his personal interests. The best example of this, as we lay out in Chapter Eight, is the remarkable and indeed uniform resistance by Trump’s senior aides and political appointees to his efforts to fire Special Counsel Robert Mueller or to influence Mueller’s investigation.
That said, we think that the obstruction of justice statutes operate mainly as a feared caution sign against corrupt law enforcement rather than as a tool that can be wielded readily in investigations against executive branch officials absent extreme circumstances. This is so because: Article II gives executive branch officials broad discretion over law enforcement; political considerations in the broadest sense of the term often properly inform this discretion; and it is hard to identify and weed out law enforcement actions that are “corruptly” politically motivated without unduly burdening, and chilling, standard executive branch prerogatives.
The Dannehy analysis about obstruction in the electoral interference context hints at some of these problems. She read extant law to apply to interventions by executive branch officials to accelerate a charging decision or initiate an investigation for the sole purpose of influencing a specific election. The rub comes in “mixed-motives” cases, where Dannehy interpreted the obstruction statutes not to apply to politically motivated action to influence an election when there is also present a good-faith belief in the merits of the action. In fact, mixed-motives cases may involve not merely a good-faith but a mistaken belief in the merits: The action based in part on anticipated political benefits could be the better or even the best choice on the merits.
Dannehy’s approach to mixed motives is the right standard for at least two reasons. First, the line between mixed-motives cases and those with only a “bad motive” will not always be clear, but even as Dannehy construes it, the main obstruction statute should still have a deterrent effect on unduly partisan law enforcement actions even in cases where motives are mixed. Second, the alternative standard—where the mere presence of an illicit motive constitutes obstruction, regardless of proper law enforcement aims—would pose a significant burden on the president’s (and the Justice Department’s) constitutional authority to enforce the law.
There is a broader dimension to politicized law enforcement, not tied to a particular election, that is challenging to conceptualize within an obstruction of justice rubric. Presidents and their political teams invariably keep an eye on the political significance of executive branch policies and actions, and their impact on key constituencies or voting blocs. Assume that the Justice Department is evaluating the potential prosecution of an individual or a company within an industry or the nonprofit community that has been supportive of the president. Assume further that the case is a hard one, the decision to proceed could go either way, and the administration weighs in the balance the political fallout from proceeding. Perhaps its concern is that bringing charges will damage the president politically within a specific community of supporters. The political assessment may include projections of harm to the president’s stable of reliable political donors in that community, or it may be that he or she is trying to reward loyalty for past political support.
A legal standard designed to preclude that sort of “politics” presents major issues of both administrability and constitutionality. In endless contexts like these, there is no clear line between politics of the kind that presidents and their subordinates have long practiced and actions that threaten the administration of justice. A more demanding standard than the one in the Dannehy analysis would impose significant burdens on executive branch prerogatives to make discretionary judgments when these may involve political considerations in this broader sense. [321] And it would surely invite political opposition to frequently weaponize vague claims that executive branch officials were corruptly motivated by partisan political considerations in the performance of their duties. Again, there is reason to think that the obstruction of justice statute as currently construed has an impact on official conduct.
These are some of the reasons we do not propose alterations to the current obstruction of justice statutes as a mechanism to tamp down on the possibility of politicized law enforcement by Justice Department officials and White House officials other than the president and vice president. Those statutes are already doing work, though it is hard to see. As we explain in Chapter Eight, however, we do favor altering the primary obstruction of justice statute for certain actions by the president and vice president. We believe that this change will have nontrivial additional downstream effects, beyond the current operation of the obstruction of justice statutes, on the behavior of executive branch officials below the president and vice president.
Legislation to Specify Qualifications for
Senior Justice Department Positions
A first line of defense against political interference in the law enforcement process obviously rests with Justice Department officials. The Trump experience is the case in point. As noted earlier, and as made clear in Chapter Eight’s discussion of the special counsel experience, the department for the most part held firm in the face of the president’s incessant efforts to protect him and his friends, or to prosecute his enemies.
Future presidents may learn the wrong lesson from this experience and decide they need more dependable friends in office who are more responsive to their needs. They might look to fill senior Justice Department positions with political allies whose primary appeal is their background and loyalty, rather than special professional qualifications for the job. Trump appeared to try to do this with the appointment of Matthew Whitaker as acting attorney general. Whitaker did not act as some critics of his appointment had feared he might by, for example, acting as Trump’s agent in discrediting or undermining the Mueller investigation. It may be that, in fact, Whitaker subscribed strongly to the norms of independence or that he concluded that he should not challenge those within the department who did. In any event, Whitaker’s tenure as acting attorney general was a further testament to the resilience of those norms. But we should not assume that Whitaker’s failure to give in to Trump on several matters will mean that presidents won’t try harder and better succeed in the future. Many people think Trump has done just that in his selection of William Barr as attorney general.
Other than the potential for adverse public opinion, Senate resistance to confirmation, and impeachment, there are limits to what can be done about this problem. A president who goes about this task with subtlety can choose a nominally respectable lawyer who is also a strong political supporter whom the president is confident will go great lengths to collaborate in unsavory if not illegal political initiatives, or who holds such broad views of executive power as to effectively enable the president to do what he or she wants. Indeed, with few exceptions, presidents for many decades—going back at least to Franklin D. Roosevelt and, indeed, even earlier—have chosen attorneys general who are close friends, committed political allies, or relatives. There is perhaps no more definitive evidence of presidential sensitivity to the political opportunities and dangers of law enforcement than this fact.
While no reform can eliminate the possibility of presidential nomination of an attorney general or other senior Justice Department official who is guided in his or her actions by a misplaced, excessive standard of political loyalty or who lacks adequate integrity, we propose statutory qualifications for senior Justice Department officials that can rule out some of the most dangerous cases and might influence a norm about acceptable nominees.
First, Congress should reinstate its original qualification for attorney general and apply it as well to the positions of the deputy and associate attorney general, and assistant attorneys general. The Judiciary Act of 1789 required the attorney general to be “a meet person, learned in the law.” [322] We would add to the traditional requirement that the attorney general also be a person of integrity, so that the formulation would read: “a meet person of integrity, learned in the law.” Even with the addition, this may seem like a trivial requirement, since “meet,” which in this context means “appropriate,” is underspecified; “learned in the law” might not rule out anyone with a law degree; and “integrity,” which connotes honesty and strong moral principles, might be contested in practice. Indeed, this qualification might not have precluded the appointment of Whitaker, a former U.S. attorney and chief of staff to the attorney general who was nonetheless widely seen as unqualified for his three-month stint as acting attorney general.
We believe that this requirement could have an impact on the Senate confirmation process and thus on executive branch deliberations about whom to nominate. The requirements to be “meet,” a person of “integrity,” and “learned in the law” would sharpen the Senate discussion and place a burden on the candidate to explain why he or she is appropriate and adequately learned and has an unblemished reputation for probity. They would also temper claims that the choice is purely one of presidential prerogative. Especially when the Senate is closely divided, this more focused discussion can have an impact.
Consider Whitaker’s case. It was easy enough for Trump to appoint him as acting attorney general. But if Whitaker were in a confirmation process, he would have faced serious questions about his qualifications for the job. Under our proposal, the question would be forthrightly presented by statute—whether by experience and accomplishment, he was meet, learned in the law, and a person of integrity.
Second, Congress should bar the president from appointing to senior Justice Department positions individuals who within two years of appointment were engaged in identified forms of partisan political activity. Individuals within this category include those who held in the preceding presidential election cycle positions of trust or responsibility in the president’s personal campaign organizations; in a national, state, or local political party; or in other political organizations that supported the president for election. This proposal would exclude the most overt partisans from top Justice Department jobs, which is important not just in fact but in appearance as well. To be sure, it would not prevent a president from nominating someone who is fiercely partisan and loyal but who did not engage in proscribed political activity. But again, it would exclude some who might otherwise be considered and could favorably shape the norm surrounding appropriate nominees.
Qualification requirements are commonplace for agency heads and other inferior officer positions in the executive branch. Even principal officers, including some Cabinet heads, have qualification requirements. The secretary of defense, for example, must be “appointed from civilian life” and “may not” be appointed “within seven years after” after serving in the armed forces. [323] Despite the prevalence of qualification requirements, there is a question about how far Congress can go in burdening the president’s appointment power. The Supreme Court has never been clear on this issue, and the Office of Legal Counsel has acknowledged that “[t]here is no settled constitutional rule” here. [324] Supreme Court and Office of Legal Counsel opinions both emphasize, somewhat unhelpfully, that the main question is the degree to which the qualification burdens the president’s appointment power. [325]
There is little doubt that the qualification requirement from the Judiciary Act of 1789 is constitutional. That qualification for attorney general prevailed from 1789 until 1870 and has been a qualification for the solicitor general ever since. [326] Adding the integrity criterion to this traditional requirement almost certainly does not go too far. It is harder to predict whether the “political activity” bar is constitutional. But it satisfies a central Office of Legal Counsel requirement, since it clearly does not “rul[e] out a large portion of those … persons best qualified by experience and knowledge to fill a particular office.” [327] The “political activity” bar would rule out relatively few otherwise qualified people. It is also at least as material to the attorney general’s job as the civilian qualification is for the secretary of defense, and its time bar is shorter. Only litigation in this discrete context can settle the question, but the proposal is plausibly constitutional.