Wednesday, June 16, 2021

Trump's Pressure Campaign Against Acting AG Rosen Was Small Potatoes But Highlights the Elusiveness of the Norm of Justice Dep't Independence

 by Michael C. Dorf

For much of the day yesterday, the lead story in the online version of the NY Times was this: "Trump Pressed Official to Wield Justice Dept. to Back Election Claims." The story details how, even before William Barr stepped down as Attorney General, Trump and his loyalists privately urged soon-to-be-Acting AG Jeffrey Rosen to support claims and file briefs making factually baseless arguments about election fraud that had either already been rejected or were about to be rejected by every court to consider them.

The timing of the story makes sense; the emails detailing the campaign have only just become public. However, the breathless coverage is puzzling. Compared with the pressure Trump exerted on the Georgia Secretary of State to "find votes" and his encouragement of a violent seditious mob to overthrow the government, the emails to Rosen and his aides urging the filing of briefs are small potatoes. It's a bit like learning that a serial killer also didn't pay the fines on his overdue library books.

To be sure, a President seeking to use the DOJ for his own narrow political interest violates important and longstanding norms, but the fact that Trump wanted DOJ to do that is hardly news. From the firing of James Comey, through Trump's very public displeasure with Jeff Sessions for recusing from the Russia investigation, through Barr's dishonest mischaracterization of the Mueller Report's conclusions, through the revelation, just a few days ago, that Barr's DOJ subpoenaed private data on prominent congressional Democrats as part of a leak investigation, the public record was already replete with evidence of Trump and his enablers utterly disregarding the norm of DOJ independence.

Yet if there is no big-picture news in the pressure campaign on Rosen, the episode nonetheless provides an opportunity to reflect on the norm of DOJ independence more broadly. I shall argue that the norm is important but fuzzy, because it relies on a somewhat elusive distinction between ideological politics and partisan politics. Consequently, bad faith actors (like Trump and his minions) can undermine or evade it.

Let's begin by trying to get a handle on what we mean when we say that the DOJ and sub-units like the FBI are or should be independent of political influence. Nobody thinks that DOJ should be completely independent of all political influence. Congress sets its budget and passes the laws that it enforces. The President nominates and the Senate confirms the AG and other high-ranking DOJ officials. And agencies under political appointees set policies that DOJ then enforces or defends in court.

At the other extreme, however, some adherents of the so-called unitary executive theory contend that, as the repository of the Article II executive power, the President must have the authority to direct the activities of the executive branch. There are weaker and stronger versions of this view. The most robust version treats much of the modern administrative state--especially agencies headed by commissioners who cannot be removed at will by the president--as unconstitutional. It would also invalidate statutory limits on the President's ability to control DOJ, as Justice Scalia argued in his solo dissent in the 1988 independent counsel case of Morrison v. Olson. Yet despite the likely increased support among conservatives for something like the Scalia view, it remains true that DOJ's political and other forms of accountability do not run simply through direct Presidential control, as Prof Jack Goldsmith cogently explained on Lawfare in January 2018.

If DOJ is neither wholly unaccountable to political actors, including the President, nor wholly accountable through the President, where is the line between permissible Presidential direction of and impermissible interference with DOJ? The standard answer distinguishes between policy (which can implicate politically salient disagreements) and partisan or personal politics. The DOJ Principles of Federal Prosecution exemplify the distinction. They set forth partisan-neutral and person-neutral criteria for prosecution.

That distinction seems plain enough in theory and in paradigm cases. A decision to target scarce federal law enforcement resources at interstate traffickers in cocaine and heroin rather than state-legal possession of marijuana is a legitimate policy choice that the President or one of his appointees who serves at his pleasure might make. So too would be a decision to reverse such an approach. However, a decision to target a President's political rivals for investigation or prosecution when otherwise similarly situated persons are not targeted would be an impermissible partisan and person-based approach.

Nonetheless, the line between legitimate policy direction and impermissible partisan interference by a President and his administration can sometimes be fuzzy because of the partisan valence of a fair number of policy disagreements. For example, when a Republican-led DOJ argues for upholding restrictions on voting rights or against sustaining campaign finance regulations, it can offer policy rationales and constitutional arguments, but only the most naive observers will fail to notice that it is also using the Department of Justice to advance the partisan interests of the Republican Party.

Or consider an example that heralds the most likely mechanism by which Trump-appointed Justices will acquiesce in or abet the permanent destruction of American democracy. Building on the poorly reasoned three-Justice concurrence in Bush v. Gore, various Justices have endorsed (e.g., in an October 2020 case from Wisconsin) the "independent state legislature" theory that gives state legislatures virtually unreviewable power--even by their own state supreme courts under state constitutions--to set election rules. Republican-gerrymandered state legislatures in swing states around the country have been busily passing laws that would enable them to use that power to nullify Presidential election results that they will pretend are marred by "fraud" (taken to mean Black, brown, and other citizens exercising their right to vote for Democrats). If such laws end up before the Supreme Court in 2024, should DOJ under AG Garland be prevented from taking a position on them because the validity and scope of the independent state legislature theory has an obvious partisan valence? If not, does that mean that Trump's efforts to pressure Acting AG Rosen were legitimate at least insofar as they relied (as they did rely) on promoting an extremely aggressive version of the independent state legislature theory?

I don't think there are easy answers to this question because of the often-substantial overlap between policy and partisan political judgments. It does not follow, however, that there are no cases that go far over the line. Trump and his minions did that, but there's no doubt that the fuzziness of the line enabled them (if you will excuse a change in metaphor) to push the edge of the envelope before fully tearing it open.

In the end, then, we are left with the limitation on the effectiveness of norms that the DOJ prosecutorial Principles themselves recognize: "Important though these principles are to the proper operation of our federal prosecutorial system, the success of that system must rely ultimately on the character, integrity, sensitivity, and competence of those men and women who are selected to represent the public interest in the federal criminal justice process." That is true not only of the lawyers selected to work in DOJ but the elected officials (including especially the President) and high-ranking political appointees who supervise them. 

Postscript: For a deeper dive into the complexity and sometimes problematic nature of the nonetheless essential norm of prosecutorial independence, watch for The Imperial Prosecutor, an insightful work in progress by my colleague Brian Richardson.