Can Trump Use The Justice Department For Personal Attacks?

Now that Jeff Sessions has resigned as attorney general, legal scholars ask how far the president can go when instructing the DOJ to prosecute.
Posted at 5:27 PM, Nov 07, 2018

Attorney General Jeff Sessions resigned on Wednesday at President Donald Trump's request — and that didn't exactly come as a surprise.  

Trump had pretty regularly attacked his attorney general for recusing himself from Robert Mueller's probe into Russian interference in the 2016 election. 

Sessions' resignation will only intensify concerns from some legal scholars over how much control the president should have over the Justice Department and federal prosecutors.

"It's really been one thing after another, demonstrating a sustained attitude that President Trump has toward federal prosecutors that they are, and should be, his lawyers who serve him," said Rebecca Roiphe, a professor at New York Law School and a co-author of a recent paper on the issue

She argues that while the president's constitutional power to hire and fire his subordinates is undisputed, that power doesn't necessarily mean he can tell his attorneys how to do their job, outside of general directives. 

"We want our president to set broad policy objectives for the Department of Justice, like, 'We're going after marijuana crimes,'" explained Roiphe. "But what we don't want the president to do is to go in and say, you know, 'Go arrest that person, don't arrest this person, don't prosecute this person,' because that's really scary. I mean, that's where democracy's fault lines are visible, and you could see where it could all crumble."

Roiphe, who's praised Sessions for standing up to Trump prior to his resignation, says it's crucial for government attorneys to put the rule of law above the president's personal interests. Otherwise, she claims, the fairness of every federal investigation could be compromised in order to "further Trump's political ends." 

But because neither Congress nor the Supreme Court has clearly settled the question, many scholars disagree with Roiphe. They say the Constitution gives the president "unitary" power to control the entire executive branch, which the DOJ is part of. 

Alan Dershowitz of Harvard Law School told Slate last December that "the president is entitled to tell the Justice Department who to investigate, who to prosecute, and who not to investigate, and who not to prosecute."

And Andrew McCarthy writes in the National Review: "Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller have no power of their own; they exercise President Trump's prosecutorial power for as long as that arrangement suits President Trump." 

Roiphe's counterargument to the unitary view of presidential powers is that there are inevitable separation of powers within each branch of the government. That concept is known as "intra-branch checks and balances."

"Balance of powers is a very complicated topic, and people have totally different views about what it means," Roiphe said. "But one thing we know it means is nobody should get too much power, right? And when you look at things today and you look at where the checks are coming from, it's really not coming from Congress. And therefore, you kind of look somewhere else, and where is it coming from? It's coming from within the executive itself." 

She added: "One of the things that's holding together our democracy — and I think appropriately so — is these professional norms of the government lawyers. And I think that was by design." 

This video includes reporting from Newsy affiliate CNN.