President Donald Trump asserts that he is the nation’s top cop, a title more typically accorded the attorney general.
Even the Trump-cheerleading White House website sides with the attorney general, describing him as the “chief law enforcement officer of the federal government.”
But the president’s claim is consistent with the robust view of executive power that Trump and his supporters have put forth since he took office in 2017. And some conservative legal minds think Trump is right, but that it’s better public policy to keep law enforcement at arm’s length.
Several veterans of President Barack Obama’s administration described Trump’s assertion as dangerous and simply wrong on the law.
Since the Senate impeachment trial ended with his acquittal, Trump has urged leniency for convicted confidant Roger Stone, pushed impeachment witnesses out of their jobs, verbally attacked a federal judge and complained that a juror who voted to convict Stone was biased.
The president has denied that he intervened to force the Justice Department to withdraw a recommendation of seven to nine years in prison for Stone. Attorney General William Barr has backed Trump up, saying he did not consult with the president before ordering a call for a shorter prison term.
But Trump said there would have been nothing wrong if he had stepped in. “I’m allowed to be totally involved. I’m actually, I guess, the chief law enforcement officer of the country. But I’ve chosen not to be involved,” he told reporters on Tuesday.
That’s essentially the same message Trump’s lawyers sent special counsel Robert Mueller in January 2018, as they offered to provide written answers to Mueller’s questions to the president about possible obstruction of the investigation into Russian interference in the 2016 election.
“It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired,” Trump lawyer John Dowd wrote.
John Yoo, a University of California at Berkeley law school professor and Justice Department lawyer during President George W. Bush’s administration, said the Constitution gives the president the power Trump claims.
“But while the President is in charge constitutionally, as a matter of good policy, presidents have kept law enforcement at arms length. Neutrality in law enforcement is important if the government is to have the credibility and integrity to convince judges and juries, who are the ones who ultimate render the verdict,” Yoo wrote in an email.
Josh Blackman, a South Texas College of Law professor, agreed with Yoo about Trump’s authority over criminal prosecutions. “The President can delegate that power to the AG, but ultimately the President has the final call,” Blackman wrote in an email.
But the latest actions by Trump drew condemnation from more than 2,400 former Justice Department officials who served in Democratic and Republican administrations. In an open letter, they said that the department’s rule book for its lawyers calls for impartial decision-making that is insulated from political influence.
“All DOJ lawyers are well-versed in these rules, regulations, and constitutional commands. They stand for the proposition that political interference in the conduct of a criminal prosecution is anathema to the Department’s core mission and to its sacred obligation to ensure equal justice under the law,” the department alumni wrote.
Martin Lederman, a Georgetown law professor and former Obama Justice Department official, said on Twitter that Congress, not the president, gives the authority to prosecute to the attorney general. It’s also the attorney general’s responsibility, Lederman said, to stand up to a president who charts an unlawful course, “knowing that it might … lead to removal.”
Chris Lu, who managed Obama’s Cabinet in his first term, said the Obama White House followed its predecessors in adhering to strict rules on who could communicate with the Justice Department and on what topics.
“What Trump is suggesting is at odds with this longstanding precedent and dangerous to the principle of impartial justice,” Lu said.
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