Streetwise Professor

May 21, 2018

DOJ “Independence” Is Not a Thing: It Is an Extra-Constitutional Arrogation of Power

Filed under: Politics — The Professor @ 6:45 pm

On Sunday Trump announced (via Twitter, naturally) that he intended to order the Justice Department to investigate allegations of spying on his campaign: today, he followed through, and the DOJ has complied.

Immediately after Trump’s tweet, craniums began to explode all over DC and the media.  So many that it may be necessary to change the lyrics of the National Anthem to “heads bursting in air.”

Most of the exploding pates belonged to ex-DOJ officials and functionaries, many of whom do not come to this issue with clean hands (to understate things).  For example, ex-Assistant Attorney General Sally Yates shrieked (but I repeat myself):

“I think what we’re seeing here is the president has taken his all-out assault of the rule of law to a new level and this time he is ordering up an investigation of the investigators who are examining his own campaign. You know, that’s really shocking,” Yates said on MSNBC’s “Morning Joe.”

Yates, of course, is directly implicated in the anti-Trump campaign, notably for setting up Michael Flynn (and likely many other things as well, including unmasking of US citizens).

The highest ranking exploding head is ex-Attorney General Eric Holder, who tweeted:

Trump demand for DOJ investigation is dangerous/democracy threatening. DOJ response is disappointing.There is no basis/no predicate for an inquiry. It’s time to stand for time honored DOJ independence. That separation from White House is a critical part of our system.

Let us pause for amusement at the thought of a man who proudly proclaimed that his proud duty as AG was to serve as Obama’s “wingman” intoning about “separation from the White House.”  Let us guffaw at Holder’s claim of “no basis/no predicate” for an investigation, after recalling the findings of the House and Senate Intelligence Committees, not to mention numerous NYT and WaPo articles, many based on leaks clearly emanating from Justice.  Certainly there is much more “basis/predicate” here than hearsay from a partisan about the drunken ramblings of a peripheral campaign figure, or a completely unverified dossier that is risible on its face.

But now let us turn to the main issue: the assertion of “time honored DOJ independence.”

In fact, “DOJ independence” is not a thing.  Indeed, the assertion thereof is an extra-Constitutional arrogation of authority.  Trump’s actions in ordering an investigation are not a threat to the Constitutional order–instead, it is threatened by the actions of members of the executive branch who usurp power based on their inflated and utterly mistaken belief that somehow the DOJ is not subordinate to the President.

This is not that hard.  Trump’s unconditional authority to demand an investigation is explicit in black-and-white in Article II, Section 2 of the Constitution:

[the President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices. [Emphasis added.]

Require written reports on any subject relating to the duties of an executive department.  There is no dispute that DOJ is an “executive department.”  If Eric and Sally need any guidance on this score, please refer them to An Act to Establish the Department of Justice (passed on 22 June, 1870) which reads, in part, “That there shall be, and is hereby, established an executive department of the government of the United States to be called the Department of Justice, of which the Attorney General [a position that predated the establishment of the DOJ] shall be the head.”

Thus, DOJ is clearly subordinate to the Chief Executive, and said Chief Executive has the unconditional authority to order reports (which necessarily involve the performance of some sort of investigation) on any subject related to the DOJ’s “duties” (which include criminal and counterintelligence investigations).  There is no “except for investigations of his campaign” exception.  In fact, there is no exception at all.

Further, the DOJ is clearly subordinate to the President, whose primary duty is to “take care that the laws be faithfully executed.”

Against this no doubt the likes of Holder and Yates and the other lesser lights who have also weighed in (heavy on the outrage) will respond: but it is necessary to ensure that the President does not violate his duty to execute the laws by interfering in investigations, particularly those that threaten him or his personal or political interests.

Two remarks are apposite in reply.  First, yes, this is a danger, but the Constitution has a remedy.  Presidents are subject to impeachment by Congress if they engage in such conduct–which would violate their duty under the Take Care Clause. Impeachment is the check on executive conduct–not the judgment of the executive’s subordinates.  One co-equal branch checks another: it is incoherent for the subordinate parts of one branch to check the acts of the head of that branch.  It is an inherent part of the system for the head to check the acts of the subordinates.  Indeed, it is his duty.

Second, it is particularly outrageous to raise this argument in this context, because if a President’s motives are suspect in a case involving his own interests, the motives of DOJ (including FBI) employees present and past are deeply suspect in the cases of spying on the Trump campaign, and the Clinton email investigation.  Indeed, all of the stonewalling of requests by Congress, and the extensive redactions, usually based on claims of “national security”, have been exposed as efforts of the DOJ to conceal its misdeeds and to protect senior department officials past and present.  Any presumption of independence and clean hands is risible here.  DOJ personnel past and present are up to their necks in this, and it is imperative to hold them accountable.

Thus, the rantings of Yates about threats to the rule of law, and Holder’s assertion of DOJ independence, are inversions of the truth.  Trump is not threatening the Constitutional order: he is upholding it by demanding accountability by those delegated by him pursuant to his Constitutional power in order to perform his Constitutional duties.

The hysterical reaction to Trump’s action is quite revealing.  Some people are afraid.  Very afraid.

Good.  Damn good.

My main reservation is the approach that emerged from today’s meeting between Trump, Sessions, and Rosenstein: delegating to the DOJ Inspector General the responsibility of investigating and reporting on the campaign spying issue–in addition to all of the other investigations on his plate.  This means that we will learn something in oh, 2020 or so.

Not acceptable.  This is an urgent matter that must be resolved quickly.

It would be preferable for Trump to exercise another of his unconditional powers–the power to declassify.  At the very least, he should order all relevant documents be made available to Congress, unredacted, and should order all DOJ personnel to make themselves for Congressional questioning.  I would consider going further: declassifying and releasing unredacted to the public the relevant documents, to let us decide.

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  1. I guess the exploding heads show is to hide the fact that the IG has – no power:

    Comment by elmer — May 22, 2018 @ 7:34 am

  2. Apparently, the lefties have gone back to their previous talking points about “constitutional crisis,” among other things.

    And, of course, the shrieking is standard procedure.

    The Constitution vests the appointment of principal officers in the Prez – with the advice and consent of the Senate.

    Is Mueller a principal officer, who must be approved by the Senate, or an inferior officer?

    Where does this “DOJ independence” come from?

    I was under the impression that Congress has some oversight over the executive branch, even if it is an implied power.

    Comment by elmer — May 22, 2018 @ 8:39 am

  3. Thank you again for another excellent article.

    Comment by Peter — May 22, 2018 @ 7:18 pm

  4. I hope he’s taken steps to ensure they can’t shoot him.

    Comment by dearieme — May 23, 2018 @ 6:14 am

  5. That seemingly useful information is frequently considered secret has become a huge concern of mine. However, leaks seem to be a scourge, as well. I haven’t figured out how to reconcile the two.

    Comment by Howard Roark — May 23, 2018 @ 10:24 pm

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