At least since Watergate the confirmation of an attorney general has been considered a matter of particular importance and sensitivity. This reflects both the necessity of ensuring that the administration of justice is conducted impartially and the difficulty in drawing clear lines as to how the president and White House may properly exercise influence over the Department of Justice. See Green & Roiphe, 70 Ala. L. Rev. at 6 (“It is not always easy to distinguish between legitimate policy objectives reflecting the President’s platform and agenda and illegitimate interference with prosecutorial discretion.”). Accordingly, senators have relied on the professional reputation and character of the nominee, assurances of independence by the nominee, and the nominee’s willingness to abide by prophylactic policies such as those limiting contacts between the White House and the Department of Justice. See id. at 22 (“Attorney General nominees since Watergate have endorsed the principle of prosecutorial independence from the President, and Senators have regarded a commitment to independence from the President as an essential qualification for the position.”).
This safeguard, however, has been undermined, perhaps fatally, by two developments. The first is President Trump’s constant and flagrant interventions in criminal cases to benefit his friends and harm his enemies. These interventions, both public and private, make a mockery of any norms of political non-interference with the administration of justice. The second development is unitary executive theory itself, which holds that all executive power belongs to the president personally and that executive officers merely exercise it on his behalf. The idea of independence, whether of an executive officer or an executive agency, is therefore seen as a contradiction in terms and a violation of the constitutional order. The Supreme Court seems to have validated this conclusion with its pronouncement that the president enjoys “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” Trump v. United States, 603 U.S. 593, 621(2024). As Professor Jack Goldsmith has noted, “[t]he Court applied this principle to deny Congress and the courts the power to stop the president from using DOJ law enforcement tools to achieve what would otherwise be a crime.”
The Decline and Fall of DOJ Independence
The two Trump administrations illustrate the decline and fall of DOJ independence. In the first Trump administration, Senator Jeff Sessions was nominated and confirmed as attorney general. During the confirmation process, he made various commitments to the Senate, including that he would seek the advice of Justice Department ethics experts in determining whether to recuse himself from investigations relating to alleged Russian interference in the 2016 presidential election. Sessions ultimately did recuse himself from the investigation, leading to sharp and public rebukes from Trump, who believed that Sessions should have asserted control over the investigation in order to protect Trump’s personal and political interests. There is little doubt this was the reason Trump fired Sessions immediately after the 2018 election. Although the dismissal of Sessions should have raised the same concerns as Duane’s firing and the Saturday Night Massacre, it provoked little congressional or public backlash.
Trump’s next nominee for attorney general, Bill Barr, was pressed for and gave a series of assurances to the Senate about his independence. In his written testimony, Barr repeated an assurance he had given the Senate during his confirmation hearings 27 years earlier:
The Attorney General has very special obligations, unique obligations. He holds in trust the fair and impartial administration of justice. It is the Attorney General’s responsibility to enforce the law evenhandedly and with integrity. The Attorney General must ensure that the administration of justice – the enforcement of the law – is above and away from politics. Nothing could be more destructive of our system of government, of the rule of law, or the Department of Justice as an institution, than any toleration of political interference with the enforcement of the law.
In his oral testimony, Barr elaborated. He made clear that whatever guidance was received from the president, decisions on specific prosecutions were the responsibility of the attorney general. In response to questions from Senator Feinstein, he said: “So, in my opinion, if he attempts–if a President attempts to intervene in a matter that he has a stake in to protect himself, that should first be looked at as a breach of his constitutional duties–whether it also violates a statute, depending on what statute comes into play, and what all the facts are.”
In response to Senator Durbin, Barr said “I will not be bullied into doing anything I think is wrong by anybody, whether it be editorial boards or Congress or the President.” In response to Senator Coons, he said he would not carry out an illegal instruction comparable to Nixon’s direction to fire the special prosecutor and stated that “on the enforcement side, especially where matters are of either personal or political interest to people at the White House, then there would be–there has to be an arm’s length relationship.”
Continue reading “The Unitary Executive (Part 6): The Case of the Attorney General”