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I’ve been very troubled by the Roger Stone case, but I’m only mildly concerned about the specific details of the case. The truly troubling aspect is the idea, widely bandied about in the media, that the President does not have the “legal right” to “interfere” in a criminal prosecution.
Here is what the President actually tweeted:
“The President has never asked me to do anything in a criminal case.” A.G. Barr This doesn’t mean that I do not have, as President, the legal right to do so, I do, but I have so far chosen not to!
This is an obviously true statement of the law, and of the Constitutional power of the President under our Constitution. Yet many people seem to object. Here are a few examples:
“Emboldened, Trump defends right to interfere in criminal cases.” Reuters.
“Trump claims he has ‘legal right’ to meddle with DOJ but former officials say it would be a ‘grossly improper’ abuse of power.” Newsweek.
“Trump defends ‘legal right’ to interfere in criminal cases.” MSN.
“Trump contradicts Barr, says he has ‘the legal right’ to ask for criminal case interference.” Forbes.
“Trump says on Twitter he has right to interfere in criminal cases after Barr criticizes president’s tweets.” CNBC.
“Trump insists he has ‘legal right’ to intervene in DOJ cases, but has chosen not to.” Fox News — yes, even Fox News.
Ladies and Gentlemen, behold the Swamp and its enablers in the media.
I find the proposition that it is improper for the President to “interfere” with the DoJ to be absolutely absurd. The President didn’t claim a legal right to interfere in the actions of a DoJ prosecutor in a criminal case. He claimed the legal right to control his employees who are exercising his authority.
I’ve been troubled by this for several days. I was prompted to write this post when I looked at the latest Economist/YouGov poll, intending to analyze the President’s approval ratings, and found the question: “Do you think Donald Trump has the legal right to intervene in criminal cases being investigated in the Department of Justice.” The result was 51% no, 25% yes, 24% not sure. In fairness, 99% of respondents probably should have said “not sure,” as this may be a somewhat complicated question of Constitutional law.
But no, it’s actually not complicated. You see, the President is in charge of the executive branch. He’s the boss. The buck stops on that desk. That includes the bucks passing through the DoJ. There is no such thing as permissible executive authority that is outside the control of the President.
The Supreme Court decided this issue in 2009 in Free Enterprise Fund v. Public Company Accounting Oversight Board. The Board at issue had regulatory and disciplinary authority over every accounting firm that audited public companies. Members of the Board were appointed by the Securities and Exchange Commission (SEC). The problem presented by the case was the lack of Presidential control over the Board, as: (1) Board members were appointed by the SEC and could only be removed by the SEC for good cause; and (2) the President cannot remove the Commissioners of the SEC except for “inefficiency, neglect of duty, or malfeasance in office.”
In a 5-4 decision, the Court held that the lack of Presidential control over the Board was unconstitutional because the executive power is vested in the President and control of executive officers cannot be taken away from the President. Here are some key excerpts from the majority opinion by Chief Justice Roberts:
The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.” Id., at 693.
The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman’s lament, to “persuad[ing]” his unelected subordinates “to do what they ought to do without persuasion.” Post, at 11 (internal quotation marks omitted). In its pursuit of a “workable government,” Congress cannot reduce the Chief Magistrate to a cajoler-in-chief.
. . .
The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself.” The Federalist No. 70, at 478.
Every single prosecutor in the DOJ is exercising authority delegated from the President. The President has the right to control the actions of those prosecutors.
Don’t just take my word for it or the word of the Supreme Court. Here are the words of Benjamin Wittes, founder of the Lawfare blog, Research Director in Public Law at the Brookings Institution, and Co-Director of the Harvard Law School-Brookings Project on Law and Security. Mr. Wittes is no friend of the President, having written a book titled Unmaking the Presidency: Donald Trump’s War on the World’s Mots Powerful Office. He co-authored an article at the Lawfare blog stating that the President’s actions regarding the Roger Stone case were “[c]orruption in the justice system.”
But Wittes has written other articles, apparently not contemplating that he would later want to complain that a perfectly valid exercise of Presidential authority was “corruption.” In an article in the Atlantic in June 2018, addressing the challenges in the obstruction of justice charge then being investigated by the Mueller team, Wittes wrote:
So yes, the president’s lawyers are correct when they argue that the president is the executive branch, so presidential obstruction of justice might produce the tautology of the president’s obstructing himself. The Justice Department and the FBI are merely arms of the president, after all.
Exactly. It might be nice if Wittes told this to the media.
People don’t seem to think things through. They are concerned about fairness in the administration of justice, and rightly so. There can be unfair, politically motivated prosecutions. There can be unfair, politically motivated decisions not to prosecute. Someone has to have the discretion to decide whether or not to proceed.
What people don’t seem to understand is that the choice is not between some perfectly neutral arbiter and the current occupant of the Oval Office. The choice is between the unelected and unaccountable bureaucrats and the duly elected President.
The alternative is the Swamp. If we needed the lesson, the past few years have given us ample reason to doubt that DoJ employees are free of political or personal bias. This is not a condemnation of them. It is a fact of human nature.
Our system deals with this problem by making prosecutors accountable to the President and making the President accountable to the people. The alternative, quite frankly, is tyranny.Published in