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.”
Barr undoubtedly believes that he fulfilled these promises to the Senate, and perhaps he did. His memoir makes clear, however, that he faced numerous attempts by Trump to intervene in matters where Trump had a personal or political interest, particularly with regard to prosecuting Trump’s political enemies. To cite just one example during the 2020 election campaign:
I also thought it was telling at this time that the President railed more than usual against my decision more than a year before not to prosecute [James] Comey for providing to his lawyers the memos he had written for the record about his meetings with Trump. Claiming to have personally studied the IG’s eighty-page report on the matter, he insisted that there was a mountain of evidence to support criminal charges against Comey but that, for whatever reason, I recoiled at approving an indictment.
William P. Barr, One Damn Thing After Another: Memoirs of an Attorney General 525 (2022). Explaining this and many similar messages from Trump, Barr writes:
Either (a) he was convinced we had sufficient evidence to indict senior individuals but I was afraid to pull the trigger because of political correctness, or (b) he wanted me, whatever the evidence, to deliver the results before the election. Probably both attitudes were present to a degree, but I think the former—that we already had sufficient evidence—was the dominant idea.
Id. at 523. I am not sure if that last sentence was intended to be comforting to the reader (if so, it didn’t work on me).
Perhaps, though, it was intended to comfort Barr himself. After all, if Trump believed Comey and many others were guilty of serious crimes, it would be less obvious that he was guilty of a “breach of his constitutional responsibilities” in accordance with Barr’s congressional testimony. This question would arise again in connection with Trump’s even more dangerous “belief” that the 2020 election was stolen, as some would suggest that this excused or at least mitigated the wrongfulness of his efforts to thwart the peaceful transfer of power. See Barr, supra, ch. 23 (Election and Aftermath).
Maybe it’s just me, but it seems like the ability of megalomaniacs to form delusional beliefs is a reason not to concentrate all executive power in a single man. In any event, while Barr resisted Trump’s pressure, he did not by his own account tell him it was improper to intervene in individual matters, particularly where Trump’s personal or political interests were involved. Barr also failed to notify Congress or take any other action that might have exacted a price for Trump’s repeated abuses of power.
Small wonder that the lesson Trump learned was the one Barr ruefully recounts near the end of his book:
My frustration deepened when I saw that Trump would continue his egoistic and fratricidal tactics going forward. He made clear that he planned to purge the Republican Party of those he considers insufficiently orthodox or lacking in “loyalty,” and he has since embarked on this effort . . . In reality, he has no concern with ideology or principle. His motive is revenge, and is entirely personal. His objective is to purge those who did not actively support his attempts to overturn the 2020 election, and to seed the party with more compliant members personally loyal to him.
Id. at 560. In other words, exactly the sort of “bold and designing man, of high ambitions, and feeble principles,” whom Justice Story warned could convert the unitary executive into “an instrument of the worst oppression, and most vindictive vengeance.”
Which brings us to the third Trump nominee for attorney general, Pam Bondi, who was confirmed at the outset of Trump’s second administration. Bondi made some general assurances that she would follow the law and the Constitution, but she avoided more specific questions relating to how she would deal with instructions from the president. In any event, no one was under any illusion that Bondi would be anything other than the compliant loyalist that Trump wanted and to which unitary executive theory suggests he is entitled. One measure of her sycophancy is the fact that the Justice Department repeatedly investigated and prosecuted Trump’s enemies, including two separate and distinct indictments brought against Comey, neither of which involved the alleged crime Trump wanted Barr to prosecute him for. (Bondi had assured the Senate that there would be no “enemies list” at the Department of Justice, by which one must assume she meant a document with that particular title).
The Consequences of a Dependent DOJ
Presumably Prakash does not think it is optimal for presidents to be directing DOJ to investigate and prosecute their political enemies. Cf. Bamzai & Prakash, 136 Harv. L. Rev. at 1837 (“As a trustee, the President has no right to exercise powers for private benefit.”). But it is unclear under the unitary executive who, other than the president himself, can take action if a president chooses to do so. Since all executive power belongs to the president, any professional independence enjoyed by federal prosecutors would seem to be at the president’s sufferance. Moreover, while an attorney general, a DOJ attorney, or anyone else in the executive branch may have legal opinions that differ from those of the president, this would seem to matter little because “the Constitution authorizes the President to superintend and control the legal interpretations of his mere instruments.” Prakash, Too Unitary, 135 Yale L. J. F. at 553.
One area where Prakash criticizes the Trump administration is its refusal to enforce the TikTok ban, which was overwhelmingly passed by Congress at the end of the Biden administration. See Too Unitary, 135 Yale L. J. F. at 560 (referring to Trump’s “TikTok dereliction”). As Professor Goldsmith noted in this regard, it is “remarkable that the president and the attorney general have asserted a power to wipe out the effects of any law related to national security or foreign affairs on the president’s say so.”
Equally remarkable, however, is how little personal accountability the attorney general had to face for this failure to enforce the law. At her confirmation hearing, Bondi dodged questions about the ban and whether she would enforce it, and, once confirmed, she not only failed to enforce the ban but sent letters to major tech companies purporting to exempt them from any liability for ignoring their own legal obligations. Bondi’s legal justification, such as it was, for her non-enforcement of the TikTok ban was that the president had determined that an “abrupt shutdown” of TikTok would “interfere with the execution of the President’s constitutional duties to take care of the national security and foreign affairs of the United States.” On this basis she “interpreted” the law such that it would not “infringe upon such core Presidential national security and foreign affairs powers.”
In its essence, as Professor Alan Z. Rozenshtein has noted, this is simply a claim that “if a president determines that a duly enacted statute is inconvenient for the conduct of foreign affairs . . . he can simply set it aside.” With only a slight fig leaf of legalese, Bondi’s position was in effect no different than Trump’s boast of “I have an Article II, where I have the right to do whatever I want as president.” Yet to the extent that there was criticism for this audacious dereliction of duty, it was mostly aimed at Trump or the administration in general. Bondi was understood to be nothing more than the obsequious instrument of the president’s pleasure.
We can also see how this theory operationalizes in the life of an ordinary DOJ attorney. Devlin Barrett, a journalist who covers the Justice Department, explains on a recent podcast:
You see time and again, people like Emil Bove or others making the argument that you took an oath to the Constitution (and that’s true, everyone who works in the Justice Department takes an oath to uphold the Constitution) but what Bove and others are arguing in these confrontations in which they fire people is that oath requires you to do whatever the president wants you to do.
Lawfare Daily Podcast: The Department of Justice or the Department of Revenge? (June 18, 2026) (41: 20-44).
The normalization of this behavior can be seen in the confirmation process for Todd Blanche, the acting attorney general who Trump nominated to the permanent position. The nomination was momentarily stalled over a case in which Blanche (who previously represented Trump as a private lawyer) settled a lawsuit brought by Trump in his personal capacity against the government he heads for an absurd $1.776 billion dollars (plus broad tax audit immunity for Trump, his family, and his businesses). While this spectacularly corrupt bargain was a bridge too far for a handful of Republican senators, what is more striking is what was not been an issue in Blanche’s confirmation.
As Paul Rosensweig points out in The Bulwark, the latest Comey prosecution “joins a long line of baseless politicized prosecutions and investigations” in the second Trump administration:
For an attorney general to bring even one of these cases would have been an impeachable transgression in any other administration (arguably including even Trump 1.0). Today, such abuses have become normalized—so much so that they have gotten nary a mention in the ongoing Blanche confirmation fight.
This normalization is, at least in part, the fruit of the unitary executive—the idea that Blanche should or in any realistic sense could be independent of the president is now considered the thinking of a bygone era, not unlike the idea that only Congress can declare war.
Paoletta and Prakash
In an article published shortly after the Supreme Court’s 2024 decision in Trump v. United States, Mark Paoletta, now a senior lawyer in the second Trump administration, declared that “[o]ne of the most important tasks for a newly-elected President Trump is to assert operational control over the Department of Justice’s (DOJ) agenda and decision-making, including on specific prosecutions.” Paoletta rejected arguments that DOJ and the attorney general should operate independently of the president, claiming that “[t]he long history of direct presidential control over DOJ work, including directing specific prosecutions, proves that assertions of DOJ independence are false, ahistorical and anti-democratic.”
In support of his position, Paoletta cites none other than Professor Prakash, specifically a 2005 article in which Prakash argued “[t]he Constitution, as originally understood, made the president the constitutional prosecutor of all offenses against the United States.” Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 1701, 1786 (2005). Prakash rests much of his argument on the practice of early administrations, in which presidents occasionally directed federal prosecutors regarding specific matters without apparent objections from either the prosecutors or Congress. Id. at 1748-49.
Prakash acknowledges “the weighty policy arguments against presidential involvement in the prosecution of presidential allies and political enemies.” Id. at 1761. To this he has two responses. The first is that the Constitution is “replete with such conflicts of interest.” He gives an example from each branch of government: (a) “Congress decides its own budget and which laws will apply to its members;” (b) “The judiciary frequently decides cases that determine the powers, rights, and jurisdiction of the courts;” and (c) “[T]he president can pardon his associates and friends.” Id.
The congressional and judicial comparisons are rather inapt because, as the Supreme Court likes to remind us, the Constitution divides those powers among many individuals, while the president is unique “as ‘the only person who alone composes a branch of government.’” Trump v. United States, 603 U.S. 593, 610 (2024) (quoting Trump v. Mazars USA LLP., 591 U.S. 848, 868 (2020)). Thus, the risk of judicial self-aggrandizement is a serious institutional concern, but the risk of any individual justice or judge using her power to benefit herself or her friends (much less punish her enemies) is low. Indeed, a justice/judge facing even a remote chance of such a conflict is supposed to, and invariably does, recuse herself. One could think of the post-Watergate limitations on contacts between the White House and DOJ as an analogous protection against conflicts, but it is precisely this type of prophylactic measure that Paoletta (and apparently Prakash) would say the president is free to disregard.
On the other hand, the president’s power to issue pardons does present dangers similar to those posed by his power to politicize federal prosecution and law enforcement. The former is a risk the framers clearly and knowingly assumed when they drafted the Pardon Clause of the Constitution. They relied on assumptions about presidential character and the willingness/ability of Congress to exercise the impeachment power to check abuse. As Prakash has come to realize, these assumptions no longer hold and, as a consequence, the pardon power now presents an existential danger to our constitutional fabric and the rule of law. See generally Prakash, The Presidential Pardon. This hardly seems like a reason for recognizing a presidential power over federal prosecution generally, which is not explicit in the Constitution and, if anything, poses a greater danger to the republic.
Prakash’s second rejoinder to concerns about presidential control of the DOJ is that “there are constitutionally authorized means of checking prosecutorial abuses: vigorous congressional oversight coupled with a willingness to impeach and convict errant executive officials, including the president.” Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. at 1761. But, as Prakash would now probably admit, these accountability mechanisms have proved inadequate to restrain presidential abuses. As we shall see in upcoming posts, the unitary executive makes them even less effective.
Paoletta, it should be noted, has his own response to the specter of presidential weaponization of the DOJ:
No president should ever use the awesome prosecutorial powers of the United States government to pursue someone simply because they are a political opponent or for personal vendetta reasons. Donald Trump would never do that. That’s not to say that being a political adversary of a President gives you protection from prosecution if you do in fact violate the law. Whether friend or foe, no one is above the law.
(emphasis added).
If this assurance is good enough for you, welcome to the United States of North Korea. You are going to love it here.
Conclusion
Again I want to draw a sharp distinction between the constitutionally “correct” answer and the real world consequences of that answer. It could be that the tradition of DOJ independence is an extra-constitutional gloss which a president is free to disregard and that eliminating that independence is dangerous or catastrophic.
It is hard to see how Prakash or anyone else can dispute that undermining DOJ independence exacerbates the problem of presidential unilateralism and lawlessness. Prakash in fact has suggested that one way to “recage the executive lion” (a metaphor taken from Webster’s dictum that “executive power has been regarded as a lion which must be caged”) would be to establish a fully independent Justice Department. The Living Presidency at 269-70. To be sure, he acknowledged that this solution would be unconstitutional in his view. But just as a more independent Justice Department would help recage the executive lion, a less independent Justice Department will make it more powerful and dangerous to liberty and the rule of law.
But perhaps we have nothing to fear because, as the unitarians assure us, the president is an elected officer “accountable” to the people. We will address that in the next post.