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Late last year, in an interview with The New York Times, President Trump declared that he has the “absolute right to do what I want to do with the Justice Department.” In a similar vein, the president’s personal lawyer John Dowd has said that a “president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” This administration appears to have taken these statements to heart: the president and others in the White House have repeatedly intervened in the Department of Justice’s handling of law enforcement matters, calling publicly for the investigation of political opponents, pressuring officials to drop investigations of political allies, and interfering with the investigation into the president and his campaign.
These issues have been the subject of some discussion and debate that we and others have contributed to here at Lawfare. For 40 years, presidential administrations led by both parties have maintained policies limiting contacts between the White House and Justice Department on law enforcement matters involving specific parties, and have recognized a broader norm prohibiting the president and the White House from intervening in specific-party matters in most circumstances. The White House’s intervention in law enforcement matters involving specific parties is anathema to our democracy and in violation of long-standing principles that have been observed by every President since Nixon.
These long-standing policies are not just norms—they have teeth. As explained in a white paper released today by our organization, Protect Democracy—as well as an amicus brief that we filed on behalf of a bipartisan group of former high-ranking Justice Department officials—the principle of White House non-interference flows from the Constitution itself, including Article II and various provisions of the Bill of Rights.
The relevant constitutional principles
The norms and longstanding practices protecting the Justice Department’s independence reflect constitutional principles that limit the situations in which the White House may interfere in law enforcement matters involving specific parties. In short, it is constitutionally appropriate for the President to set generally-applicable policies and priorities in order to enforce the laws of Congress. But with the exception of certain narrow types of circumstances, however, it will likely conflict with the Constitution for the White House to intervene in the Justice Department’s handling of an enforcement matter involving specific parties. And if the White House intervention is based on personal or corrupted interests, such interventions will always be unconstitutional.
The constitutional underpinnings of the principle of non-interference with specific-party law enforcement matters flow from Article II of the Constitution and various provisions of the Bill of Rights.
While Article II places the president at the head of the executive Branch and vests in him the executive power, it does not give him the “absolute right” to intervene in how the law is enforced against specific parties. Even the King did not wield the type of executive power the president contemplates. Indeed, Article II places concrete limitations on how the president may oversee the Justice Department.
First, the Take Care Clause requires that the president “shall take Care that the Laws be faithfully executed.” This means that the president must operate within and enforce the laws as Congress enacted them—not subvert or rewrite them. As Justice Frankfurter explained in a concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Of course, the president may shape priorities and direct generally applicable policy within the confines of those constraints.
Second, the president must take care that the law is executed faithfully, in keeping with his Oath of Office to “preserve, protect, and defend the Constitution.” He may not act for corrupt or self-interested reasons inconsistent with his oath. And third, as Professor Gillian Metzger has observed, the passive phrasing of the Take Care Clause is unique and significant. Nowhere else does the Constitution employ a similar construction to describe the duties of a constitutional officeholder. This phrasing suggests an approach in which the president oversees the execution of the laws, but does not execute them himself.
Provisions of the Bill of Rights further constrain political interference in law enforcement matters involving specific parties. The Fifth Amendment’s Due Process Clause requires the government to follow fair and neutral procedures before denying people important interests. It prohibits public pronouncements of guilt; prosecutions by interested officials; threats of vindictive prosecution; and other forms of prosecutorial misconduct. The Fifth Amendment also prohibits the federal government from arbitrarily denying to any person the equal protection of the laws, which precludes the White House from intervening in single party matters to order the prosecution of disfavored persons or groups, or the non-enforcement of the law against favored ones. And the First Amendment prohibits retaliation based on speech or political activity. Therefore, any intervention by the White House in a specific-party matter aimed at retaliating against political participation or discouraging First Amendment-protected speech or association would violate the First Amendment.
The significance of these principles for specific-party enforcement matters
We take it to be a largely uncontroversial proposition that many or all of these constitutional provisions are violated if the president or others in the White House interfere with the Justice Department for a manifestly corrupt or self-interested purpose. For example, were the president to pressure the Justice Department to block a merger between two companies to punish unfavorable news coverage, there is little doubt that such action would violate the First and Fifth Amendments, and would be inconsistent with the President’s duty to faithfully execute the law. Indeed, this is what some worry may have happened with respect to the proposed merger between AT&T and Time Warner (which owns CNN), which is the subject of the amicus brief that we filed today. Similarly, it would be unconstitutional were the president to direct the Justice Department to prosecute his political opponent. And so too, if the president purported to exempt himself or his family or friends from an otherwise applicable law, that would violate his Article II obligations.
But those aren’t the only scenarios where White House involvement in specific-party enforcement matters has constitutional implications. Taken together, Article II and the Bill of Rights indicate that (other than in certain categories of cases) White House intervention in specific-party matters is constitutionally suspect even where there is not an obviously pernicious purpose.
To see why, consider the institutional differences between the Justice Department and the White House. The department has certain institutional features—which the White House does not share—that have both the purpose and effect of protecting the constitutional principles described above, including faithful execution of the law, due process, equal treatment, and protection of political speech and participation.
First, the Justice Department is statutorily directed and established to handle and litigate enforcement matters. As the Supreme Court observed in United States v. Armstrong, Congress provided “[t]he Attorney General and United States Attorneys” with “broad discretion to enforce the Nation’s criminal laws.” Second, the department is staffed almost entirely by individuals who are either civil servants or go through a Senate confirmation process; the former are hired without regard to political considerations and the latter are subject to review by the Senate to ensure that they will enforce the law in a fair and neutral way. Third, the department is organized and scaled to handle specific-party enforcement matters in a consistent manner—the Department is divided into scores of different litigating and enforcement divisions with expertise in different areas, and is structured such that is has a bird’s-eye view of all cases in particular geographic regions and subject matters. It also has internal watchdogs—the Office of the Inspector General and the Office of Professional Responsibility—which ensure that the law is being applied in a manner consistent with the attorneys’ professional obligations and the law. Finally, the department maintains—and in many situations makes public—an extensive set of rules and guidelines designed to ensure regularized and fair consideration of specific-party matters.
The White House lacks these institutional checks and safeguards. Because the Justice Department has the statutory authority to litigate and because, historically, White House involvement in specific matters has been strictly limited, the White House has not developed a set of rules and guidelines to govern law enforcement. As a result, when the White House weighs in on specific-party matters, it lacks any sort of guidelines to ensure that it is complying with the Constitution. It also lacks an internal inspector general or professional responsibility office to ensure that it is complying with those guidelines and treating like cases alike. That lack of safeguards is compounded by a lack of expertise and by the potential for political considerations to come into play. Unlike the Justice Department, where thousands of non-political civil servants represent the United States and develop subject-matter expertise in specialized departments, the White House has a small staff, hired and fired at the president’s whim. White House officials lack the bandwidth to specialize in specific areas or to ensure consistent application of the law in cases arising across the country.
Given that the White House lacks all the Justice Department features that safeguard constitutional enforcement of the law against specific parties, White House intervention into the handling of most types of specific-party matters creates a serious risk of conflict with the constitutional principles described above. If the White House fails to follow traditional policies restricting its contacts with the Justice Department, it simply lacks safeguards to ensure that any involvement in such matters is benign and does not lead to an arbitrarily unequal—and, by extension, unconstitutional—application of the law. The Take Care Clause and the president’s Oath of Office require that he oversee the faithful execution of the laws in good faith and to the best of his ability. Given that the Justice Department has in place protocols and structures to properly enforce the law, and the White House does not, it is hard to see how these constitutional obligations are satisfied when the White House interferes with the Justice Department in most types of specific-party matters.
The result is that, in the vast majority of situations, it will risk violating constitutional commands in Article II and the Bill of Rights for the White House to intervene in a specific enforcement matter. Because of this risk, where there is evidence that such interference has occurred, the government must show that the interference was not improper. There are some categories of cases—such as clemency, national security matters, and cases that would set generally applicable policy—with regard to which the Constitution assigns specific duties to the president and so envisions and permits a White House role in specific matters. Even then, though, the White House must exercise caution. As explained above, if the president is not disinterested in a specific-party matter and intervenes for a pernicious purpose, even these otherwise permissible White House interventions would violate the Constitution.
Different government actors should protect these constitutional principles
The fact that White House interference in law enforcement matters involving specific parties is constitutionally problematic in most circumstances has implications for every branch of our government. First, Justice Department officials should actively and publicly resist pressure from the White House regarding specific-party matters (outside the narrow categories described above), as it has already done in some instances. The public needs to have confidence that the law will be enforced impartially, notwithstanding the president’s claims. And where the Justice Department appears to be operating under improper White House influence, the department’s Inspector General should investigate and make any findings public.
Second, the Trump administration’s conduct suggests that it no longer makes sense to leave it to the White House to police itself. Congress must conduct thorough oversight of White House contacts with the Justice Department on specific matters. It should also consider legislating on proper protocols for White House interventions with the department, and may do so consistent with the Constitution. (It could model such legislation on a bar on White House interference with specific IRS matters or take a more modest approach like one it has already considered regulating White House contacts with the Justice Department.)
Third, in cases that come before the courts where there is reason to believe that the White House might have intervened, courts should allow for the development of evidence to establish whether there was improper interference and, if so, take steps to remedy the resulting constitutional violations. The doctrines that are applicable will vary based on the specifics of each case, but, as a general matter, in cases where a government enforcement action is tainted by White House interference, courts have the authority—and, indeed, the duty—to shift burdens, forgo otherwise applicable presumptions, and, in certain cases, dismiss the government’s claims outright. In particular, when courts are faced with evidence of White House interference in a specific matter (other than in the narrow categories described above), they should apply a presumption that such interference is constitutionally problematic, to be rebutted only by a contrary showing from the government.
Finally, we note that these constitutional principles have significant consequences for potential obstruction of justice charges against the current president. We expect Trump to continue to assert that he has an unfettered power to intervene in the affairs of the Justice Department, for any reason or for no reason, and that this provides him a defense in any congressional or judicial proceedings that are based on his obstruction of the investigation into Russian interference with the 2016 election. This is wrong. The President’s office cannot absolve him of the consequences of his obstructing or otherwise interfering with law-enforcement matters—whether in court or in congressional impeachment proceedings—because, rather than allow for such behavior, the Constitution limits the president’s ability to intervene in law enforcement matters involving specific parties. And it forbids him from doing so for corrupt or self-protective purposes.
In a well-functioning democracy, the law is applied in an even-handed manner and those in office do not wield the powers of the state to benefit their political allies and punish their opponents. As Thomas Jefferson observed, and the Justice Department quotes on its website, “The most sacred of the duties of government [is] to do equal and impartial justice to all its citizens.” That principle is reflected in our Constitution. And all of our government institutions must uphold this sacred duty.
By way of disclosure, we note that Protect Democracy has represented Lawfare’s editor-in-chief Benjamin Wittes and managing editor Susan Hennessey in certain FOIA and other matters unrelated to the topic of this post.