Tuesday, October 11, 2016

From Lawfare: Grab 'em by the Constitution: Trump and the Justice Department

Some commentary on Trump's promise to put Clinton in jail if he wins the election.

- Click here for the article.

The attorney general serves at the pleasure of the president and thus can be directed to do as the president pleases. He can be fired if he does not do so and replaced with someone who will. The president also has the authority to have the attorney general name a special prosecutor. Assuming, perhaps charitably, that Trump's promise to jail Clinton is a promise to do so only after she is indicted and convicted of crimes, he has the power to do that too, provided that the special prosecutor he has named or the attorney general he directs can actually make and prove a case against her. I have serious doubts that there is any such case to make, given that FBI Director James Comey has said flatly that "no reasonable prosecutor" would bring a criminal against Clinton. But let's be clear that Trump here is not promising to do anything the president lacks the constitutional authority to do.
Yet Trump's comments induced horror among many commentators—and rightly so. The reason? His promise tramples on a number of cherished norms in the relationship between the Justice Department and the White House and in the conduct of the Justice Department itself. These norms restrict presidential and departmental behavior far more than the bare bones strictures of the Constitution. They are part of our constitutional fabric and rooted in important constitutional values. But our mode of enforcing them is not legal. It is political. It is a matter of our deepest expectations of the presidency and the Justice Department.

One of these norms is that the Justice Department doesn't use the criminal enforcement powers of the federal government to go after the administration's political opponents.

. . . Another norm Trump's promises assault is the notion that while the Justice Department is part of the administration and the President is thus entitled to set policy priorities for it, the White House does not involve itself in or direct specific law enforcement operations or decisions.

. . . Still another norm, one sometimes honored in the breach, is that senior law enforcement officials are not supposed to publicly presume someone's guilt.


In addition to the three important norms you explain such a statement violates, there’s a fourth: this wasn’t an action by a sitting President, but a campaign promise to take such action by a candidate. So on top of the fact that this would be a deeply improper action for any President to take, we also have the specter of someone running for office asking people to vote for him based on a promise to investigate and jail a particular person—having a national referendum over (in part) whether someone should be prosecuted. One could debate whether it’s better or worse to have prosecutorial decisions corrupted by the White House or by being subject to a popular vote, but worst of all is to have both.

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