Here's a terrific response, from Zarik, to a Plum Line post that points out the relationship that should exist between the Department of Justice and the Presidential Admnistration. Does the president control the Justice Department, or is the Attorney General independent? The current dispute regarding what to do about the torture engaged in by the previous administration turns oout to be a teachable moment involving the limits of presidential--though not necessarily executive--power:
Let’s be clear on one thing. As Greenwald so astutely pointed out yesterday, this has nothing to do with Obama. Obama didn’t release anything. Obama didn’t “leave the door open” to prosecutions. This is the Justice Department. We’ve been so blinded by Alberto Gonzalez carrying out Bush’s brand of law that we’ve forgotten that the DOJ is supposed to operate and be independent of the Executive. Holder released the memos, Holder will do what he wants (or he should!) regardless of what Obama thinks. Obama can give his recommendation but it means nothing. Obama could strongly discourage him from prosecuting but again, it means nothing.
The reason why you’ve seen Obama and the people that actually have to listen to him (Rahm, Axelrod, Gibbs, et al)do all this shuffling in the past week is to appear to be against prosecutions at first and then seem to “soften ever so slightly” but still be generally wary of them.
That way, when Holder throws the hammer down on everyone (which is what SHOULD happen if everything goes right) Obama won’t be sucked into this because he’ll be able to say “Well, look, as you saw I was against going this far, but it’s the Department of Justice’s decision.” The media will try to say “But Mr President, the Atty General is supposed to listen to you” and THEN Obama can fire back at them with a teaching moment for everyone, telling them “Actually, he’s not, he’s supposed to be independent of me.”
The guy’s an expert on the Constitution, he knows what he’s doing. But again, let’s give credit where credit’s due — DOJ and Holder. Trials should and will happen, and the way it’s gone down so far, Obama can stay out of it. I think this will be the last you hear him talk about it.
Does this mitigate arguments that Obama is continuing to expand presidential power? By yielding to Holder he seems to be cutting against the theory of the unitary executive. Again, this doesn't mean that executive power in general is being limited, just presidential control of executive power.
Is this good or bad?
