This article is from the source 'nytimes' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.

You can find the current article at its original source at https://www.nytimes.com/2020/02/20/opinion/trump-barr-justice-department.html

The article has changed 2 times. There is an RSS feed of changes available.

Version 0 Version 1
Imagine That Donald Trump Has Almost No Control Over Justice Imagine That Donald Trump Has Almost No Control Over Justice
(1 day later)
In view of the intensifying controversy over the politicization of the Department of Justice under Attorney General William Barr and its potential weaponization at the hands of President Trump, it is worth reviving a proposal that has not been seriously discussed since the Watergate era: Congress should transform the Justice Department into an independent agency, legally immunized from the president’s day-to-day control.In view of the intensifying controversy over the politicization of the Department of Justice under Attorney General William Barr and its potential weaponization at the hands of President Trump, it is worth reviving a proposal that has not been seriously discussed since the Watergate era: Congress should transform the Justice Department into an independent agency, legally immunized from the president’s day-to-day control.
The United States government has two kinds of agencies. Most of them are “executive.” They are essentially the president’s agents and subject to his will. This is true for the president’s cabinet, including the Departments of State, Defense, Agriculture, Commerce, Transportation — and Justice.The United States government has two kinds of agencies. Most of them are “executive.” They are essentially the president’s agents and subject to his will. This is true for the president’s cabinet, including the Departments of State, Defense, Agriculture, Commerce, Transportation — and Justice.
Other agencies are made “independent” by law. Their heads are appointed by the president, but it is generally agreed that he cannot direct them to do as he wishes or control their day-to-day operations. This is true for the Federal Reserve Board and the Federal Communications Commission. It is also true for the Federal Trade Commission, the Nuclear Regulatory Commission, the Social Security Administration, the Consumer Product Safety Commission and the National Labor Relations Board.Other agencies are made “independent” by law. Their heads are appointed by the president, but it is generally agreed that he cannot direct them to do as he wishes or control their day-to-day operations. This is true for the Federal Reserve Board and the Federal Communications Commission. It is also true for the Federal Trade Commission, the Nuclear Regulatory Commission, the Social Security Administration, the Consumer Product Safety Commission and the National Labor Relations Board.
Many people think that under the Constitution, the executive branch is “unitary,” in the sense that the president must be in control of all those who carry out federal law. But since 1935, the Supreme Court has rejected this view, allowing Congress to ensure that these agencies, and many others, operate independently of the president.Many people think that under the Constitution, the executive branch is “unitary,” in the sense that the president must be in control of all those who carry out federal law. But since 1935, the Supreme Court has rejected this view, allowing Congress to ensure that these agencies, and many others, operate independently of the president.
The best reason to make an agency independent is to reduce the likelihood that its decisions will be affected by political considerations or the president’s self-interest.The best reason to make an agency independent is to reduce the likelihood that its decisions will be affected by political considerations or the president’s self-interest.
If the Federal Reserve Board were subject to the wishes of a first-term president, it would be likely to lower interest rates, no matter how appropriate the timing, to boost economic growth in an election year — and help ensure the president’s victory.If the Federal Reserve Board were subject to the wishes of a first-term president, it would be likely to lower interest rates, no matter how appropriate the timing, to boost economic growth in an election year — and help ensure the president’s victory.
If the Federal Communications Commission were controlled by the president, it might end up denying licenses to his opponents — and so use its power over the airwaves to compromise and perhaps destroy the system of free expression.If the Federal Communications Commission were controlled by the president, it might end up denying licenses to his opponents — and so use its power over the airwaves to compromise and perhaps destroy the system of free expression.
In principle, the argument for an independent Justice Department seems at least as compelling as the argument for an independent Federal Reserve Board or Federal Communications Commission.In principle, the argument for an independent Justice Department seems at least as compelling as the argument for an independent Federal Reserve Board or Federal Communications Commission.
Consider the domain of criminal law enforcement, where the department has awesome and even terrifying power. It could take action against a president’s political enemies (“Lock her up”). Indeed, the mere possibility that it might do so could operate as a strong deterrent to criticism of the president — and so compromise democracy itself.Consider the domain of criminal law enforcement, where the department has awesome and even terrifying power. It could take action against a president’s political enemies (“Lock her up”). Indeed, the mere possibility that it might do so could operate as a strong deterrent to criticism of the president — and so compromise democracy itself.
The department can also show leniency to a president’s political friends. The Roger Stone case is an example. Indeed, the very possibility that it will do so can create a strong incentive to become the president’s political friend.The department can also show leniency to a president’s political friends. The Roger Stone case is an example. Indeed, the very possibility that it will do so can create a strong incentive to become the president’s political friend.
The president’s power over the Justice Department is potentially even more dangerous than that. The department helps to oversee the antitrust laws, and in allowing or forbidding mergers, it can play political favorites. Civil actions, and not merely criminal ones, can be polluted by the president’s electoral interest (or spite).The president’s power over the Justice Department is potentially even more dangerous than that. The department helps to oversee the antitrust laws, and in allowing or forbidding mergers, it can play political favorites. Civil actions, and not merely criminal ones, can be polluted by the president’s electoral interest (or spite).
The Office of Legal Counsel, which sits within the department, is supposed to provide the president and the rest of the executive branch with objective legal advice. But at least some of the time, that office’s judgment is anything but objective. To an uncomfortable degree, its assessment of what the president is entitled to do, as a matter of law, often fits with the president’s wishes.The Office of Legal Counsel, which sits within the department, is supposed to provide the president and the rest of the executive branch with objective legal advice. But at least some of the time, that office’s judgment is anything but objective. To an uncomfortable degree, its assessment of what the president is entitled to do, as a matter of law, often fits with the president’s wishes.
In the post-Watergate era, a reasonable balance has been struck. As a matter of established norms, both Republican and Democratic presidents have usually given the attorney general a great deal of room to maneuver, especially when it comes to criminal prosecutions and ongoing litigation. In other words, norms have done the work of law.In the post-Watergate era, a reasonable balance has been struck. As a matter of established norms, both Republican and Democratic presidents have usually given the attorney general a great deal of room to maneuver, especially when it comes to criminal prosecutions and ongoing litigation. In other words, norms have done the work of law.
Under President Trump, those norms have come under severe pressure. If they collapse, there would be incalculable damage to both liberty and self-government.Under President Trump, those norms have come under severe pressure. If they collapse, there would be incalculable damage to both liberty and self-government.
In light of that risk, Congress should seriously consider making the Justice Department into an independent agency. Sure, a Republican-dominated Senate is unlikely to allow that to happen in the near future. In light of that risk, Congress should seriously consider making the Justice Department an independent agency. Sure, a Republican-dominated Senate is unlikely to allow that to happen in the near future.
But wouldn’t it be better? There are two objections.But wouldn’t it be better? There are two objections.
The first involves accountability. There’s a reasonable argument that the priorities of the department, which oversees so many important questions of law and policy, should reflect the views of the American people and so the president, whom they elected.The first involves accountability. There’s a reasonable argument that the priorities of the department, which oversees so many important questions of law and policy, should reflect the views of the American people and so the president, whom they elected.
No one elected the attorney general. Should he really be allowed to operate as an independent agent?No one elected the attorney general. Should he really be allowed to operate as an independent agent?
The second objection is that under the Constitution, Congress may well lack the authority to remove the Department of Justice from the president’s control. In fact, for the first time in decades, Congress’s power to create independent agencies is at issue before the Supreme Court, in a case raising the question of whether the independence of the Consumer Financial Protection Bureau intrudes on the president’s constitutional authority. Even if the court reaffirms the idea that Congress can make some agencies independent, it is a big leap to say that it can take law enforcement out of the president’s hands.The second objection is that under the Constitution, Congress may well lack the authority to remove the Department of Justice from the president’s control. In fact, for the first time in decades, Congress’s power to create independent agencies is at issue before the Supreme Court, in a case raising the question of whether the independence of the Consumer Financial Protection Bureau intrudes on the president’s constitutional authority. Even if the court reaffirms the idea that Congress can make some agencies independent, it is a big leap to say that it can take law enforcement out of the president’s hands.
But these objections are not decisive. In many of the states, the attorney general is independent of the governor and the system seems to work well, or well enough. But these objections are not decisive. In many states, the attorney general is independent of the governor and the system seems to work well, or well enough.
In addition, creative legislators ought to be able to thread the constitutional needle — reducing the president’s ability to undermine the legal system without eliminating his power of oversight.In addition, creative legislators ought to be able to thread the constitutional needle — reducing the president’s ability to undermine the legal system without eliminating his power of oversight.
For example, Congress might forbid presidential interference with specific categories of cases (such as pending criminal prosecutions). Or it might say that the president may discharge the attorney general only “for cause,” defined to allow the president a fair measure of supervisory control over large policy questions, while also ensuring that the department is legally free from illegitimate interference (as when the president tries to reward his friends and punish his enemies).For example, Congress might forbid presidential interference with specific categories of cases (such as pending criminal prosecutions). Or it might say that the president may discharge the attorney general only “for cause,” defined to allow the president a fair measure of supervisory control over large policy questions, while also ensuring that the department is legally free from illegitimate interference (as when the president tries to reward his friends and punish his enemies).
It’s now time to ask: In a free society, dedicated to the rule of law, does it really make sense to say that the attorney general of the United States serves at the president’s whim?It’s now time to ask: In a free society, dedicated to the rule of law, does it really make sense to say that the attorney general of the United States serves at the president’s whim?
Cass R. Sunstein teaches at Harvard Law School and is the author of “How Change Happens.”Cass R. Sunstein teaches at Harvard Law School and is the author of “How Change Happens.”
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.