Under Todd Blanche, the Justice Department is transforming before our eyes from an agency that administers the rule of law to one that obeys the command of President Donald Trump.
On Sunday, the recently confirmed attorney general refused to pledge to act independently of the White House.
“No, I’m not going to pledge that,” Blanche told NBC’s Kristen Welker during an interview on “Meet the Press.” He then rolled into a semantic trick, reframing the term “independent” from its post-Watergate understanding to one of absolute separation from the executive branch: “No attorney general should ever pledge that,” he said. “If I were to pledge, ‘I will be independent of the White House,’ what that means is that if President Trump says, ‘I want the Department of Justice to go after every violent criminal in this country,’ which is what he has said, what you’re saying to me is I should say, ‘No, sir, I’m not going to do it.’”
But, of course, Blanche’s explanation is inconsistent with the common understanding of DOJ independence. Since the Watergate scandal ended Richard Nixon’s presidency, attorneys general have worked to enforce the rule of law free from the partisan political agenda of the president. That is what it means to be a system of laws and not of men.
A president who demands charges by social media message is failing to show the restraint respect for the rule of law requires.
Edward Levi, the University of Chicago Law professor appointed by President Gerald Ford in the aftermath of Nixon’s abuse of the DOJ, made it his mission to restore integrity and public trust in the fair administration of the law. In his farewell address, Levi hammered a consistent theme of his tenure as attorney general.
“Nothing can more weaken the quality of life or more imperil the realization of the goals we all hold dear,” he said, “than our failure to make clear by words and deed that our law is not an instrument of partisan purpose, and it is not to be used in ways which are careless of the higher values which are within all of us.”
Blanche’s reframing of the term “independent” is a tactic lawyers use to make outrageous claims sound perfectly normal. A clever defense attorney will not just acknowledge a bad fact, but embrace it as if it is the very thing that means his client is innocent.
“Why, of course, my client was holding the smoking gun,” he might argue. “That’s how you know he is innocent! What killer would just stand there just holding the murder weapon!”
Here, Blanche’s sleight of hand conflates categories of cases with individual cases.
His example of a president who directs his DOJ to enforce violent crime is consistent with administrations of the past 50 years. But these presidents have directed attorneys general to prioritize particular categories of enforcement — such as financial crimes, drug trafficking or even immigration offenses — and not specific cases. In fact, until this administration, attorneys general routinely restricted communication between the White House and the DOJ to prevent not only political interference with case decisions, but even the appearance of such influence.
Following the Watergate scandal, the DOJ adopted its Principles of Federal Prosecution, an internal bible of sorts that lists the factors prosecutors may and may not consider in exercising their discretion to seek charges in criminal cases. The principles prohibit consideration of a target’s “political associations, activities or beliefs.” This is a far cry from a president who complains to his attorney general via a social media message that indictments have not yet materialized against his political enemies, like the Truth Social post Trump directed at to Pam Bondi when she was attorney general regarding Trump rivals James Comey, Letitia James and Adam Schiff.
“JUSTICE MUST BE SERVED, NOW!” Trump proclaimed.
Some observers argue that Blanche is correct that our constitutional separation of powers system puts the president in charge of the DOJ, along with every other cabinet agency. Because the DOJ is part of the executive branch, and Article II of the Constitution vests the executive power in the president, the argument goes, Trump gets to call the shots. But that argument ignores another clause in Article II, which directs the president to take care that the laws be executed “faithfully.”
To ensure that this command is fulfilled, attorneys general for the past half century have used their legal education, agency training and ethical obligations to ensure that charging decisions are based on fact and law, and not on the political goals of the president. Even William Barr insisted Trump not interfere politically in his case decisions as a condition for accepting the nomination as attorney general during Trump’s first term.
Even if a president can use the DOJ to persecute enemies, that does not mean that he should. Unlike every other cabinet agency, the DOJ has the power to take away the sacred liberty of American citizens. As a result, the power to prosecute is one that should be wielded with restraint.
Attorneys general for the past half century have used their legal education, agency training and ethical obligations to ensure that charging decisions are based on fact and law, and not on the political goals of the president.
Before prosecutors embark on a process that could take away someone’s precious freedom, livelihood and reputation, they must consider a number of institutional and societal factors, such as the effect of the prosecution on public safety, deterrence, rehabilitation of the offender, collateral consequences for other individuals and entities and the precedents that could be set for future cases. A president who demands charges by social media message is failing to show the restraint respect for the rule of law requires.
One argument in favor of a DOJ that is part of the executive branch is that voters have the power to hold decision-makers politically accountable at the ballot box. The American electorate can soon tell Blanche exactly what they think of his view of the president’s role in dispensing justice.
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