One of the most important tasks for a newly-elected President Trump is to assert operational control over the Department of Justice’s (DOJ) agenda and decision-making, including on specific prosecutions. In recent times, many have argued that the DOJ and Attorney General operate independently of the President. Indeed, many on the left have gone so far to argue that it is corrupt for the President to have any say in what the DOJ does.
This gets things completely backwards. The President has a constitutional duty as the only nationally elected and accountable officer to ensure that the DOJ is faithfully executing the law. The long history of direct presidential control over DOJ work, including directing specific prosecutions, proves that assertions of DOJ independence are false, ahistorical and anti-democratic.
Many legal historians and law professors, such as Professor Sai Prakash, have overwhelmingly established that from our earliest days as a nation, “presidential control of official prosecutions was not something controversial (or worse yet, contrary to law) … The presidents understood that they were constitutionally empowered to direct official prosecutions. Presidents ordered prosecutions commenced and halted, sometimes doing both in the same case!”
President George Washington ordered prosecutions of those involved in the Whiskey rebellion in 1792 and 1793. But after concluding that two men had not been involved in the Rebellion, Washington directly ordered the Pennsylvania federal district attorney to not pursue charges. As Prakash explained, “Washington would sometimes accompany his instructions (or his public explanation of them) with a citation to the Faithful Execution Clause or his general power to execute the laws, indicating that Washington regarded his prosecutorial authority as arising out of the Constitution itself.”
Our next two Presidents, John Adams and Thomas Jefferson, the driving forces behind the Declaration of Independence and two of our most important Founders, directed specific prosecutions of individuals and also ordered prosecutions dropped. For example, President Adams personally and vigorously directed his Attorney General and district attorneys to prosecute specific individuals for violating the Alien and Sedition Acts, and in certain circumstances, dropping some of those prosecutions. Upon taking the oath of office, President Jefferson, who had publicly criticized this law and the Adams’ Administration enforcement of it, reversed course and ordered these prosecutions dropped. As Jefferson explained in a private letter: “The President is to have the laws executed. He may order an offense then to be prosecuted. If he sees a prosecution put into a train which is not lawful, he may order it to be discontinued and put into a legal train.”
Presidents in the 20th century continued to exercise this core executive power. For example, President Theodore Roosevelt personally directed his Attorney General’s prosecution of antitrust cases. Similarly, when Attorney General Wickersham intended to criminally prosecute the United Shoe Machinery Company as a monopoly, President Taft told him “I feel … that the civil case ought to be tried first.” The Attorney General followed the President’s advice.
In the modern era, President Reagan directed the DOJ, over the DOJ’s objections, to close a criminal antitrust investigation into a British airline because it was adversely impacting our relations with Great Britain. The DOJ immediately closed the inquiry. President Reagan also directed his DOJ to vigorously prosecute the public sector unions that fomented the air traffic controllers’ strike.
In 1992, after the acquittal of police officers on state charges in the Rodney King incident, President George H.W. Bush addressed the nation and stated, “Within one hour of the verdict, I directed the Justice Department to move into high gear on its own independent criminal investigation into the case.” These officers were convicted of civil rights violations.
In 2014, President Obama spoke with Attorney General Holder regarding the prosecution of police officers in connection with the death of Eric Garner and said, “We are not going to let up until we see … a strengthening of the accountability that exists between our communities and our law enforcement.”
It is crystal clear that the President’s authority and duty to direct the DOJ on its agenda and on specific cases arises from his core Constitutional powers and is well grounded in history and tradition.
A newly-elected President Trump should appoint an Attorney General who shares the same goals and agenda and one who the President can rely on to implement his agenda, including with respect to specific cases.
But to the extent that President Trump believes he must directly exercise control over the Department’s actions, he has every right to do this. In fact, it is his constitutional responsibility. If the Attorney General refuses to carry out the President’s orders, he is obligated to resign or be fired by the President.
What’s the alternative? An unelected, unaccountable official having final say on the use of the federal government’s prosecutorial powers. This was the system of government the Founders rebelled against and specifically rejected in the Constitution.
The Left likes to falsely claim that President Trump will go after his political opponents for retribution. This is pure projection. For the past several years, Joe Biden and his allies on the Left have unleashed unprecedented lawfare on President Trump. Even legal commentators on the Left concede that these prosecutions would not have been brought if President Trump were not running for re-election. They are the ones who have used prosecution power to persecute political opponents and protect family members like Hunter Biden.
By contrast, when President Trump assumed office in 2017, he declined to use the DOJ to go after his political opponent Hillary Clinton and has a proven track record of using the DOJ responsibly to pursue actual threats to the American people.
No president should ever use the awesome prosecutorial powers of the United States government to pursue someone simply because they are a political opponent or for personal vendetta reasons. President Trump would never do that. That’s not to say that being a political adversary of a President gives you protection from prosecution if you do in fact violate the law. Whether friend or foe, no one is above the law.
As Chief Justice Roberts’s magisterial opinion in Trump v. U.S. sets forth, “Unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties.” As such, he must take care that the Department of Justice faithfully executes the law, and he alone is the individual who will decide this.
Mark Paoletta is a Senior Fellow at Center for Renewing America and a lawyer in private practice. He previously served as General Counsel in the Office of Management & Budget during the Trump Administration. He also served as a lawyer in the George H.W. Bush White House Counsel Office. He is the co-editor of the book Created Equal: Clarence Thomas in His Own Words. You can follow him at @MarkPaoletta.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.
