On Sunday, President Trump demanded that the Department of Justice investigate whether there was unauthorized surveillance of his campaign during the 2016 election. In response, Rod Rosenstein, the deputy attorney general overseeing the Russia investigation, said that the DOJ inspector general would look into the matter. Whether or not Rosenstein made the right decision by at least partially appeasing the president, it’s clear that Trump’s move is a breach of a long-established and cherished norm: that the White House should not meddle with the DOJ and order politically motivated investigations.
In a new scholarly article, “Can The President Control the Department of Justice?” Rebecca Roiphe and Bruce A. Green examine the history of the DOJ’s independence and explain how it has withstood challenges—perhaps until now. I spoke recently by phone with Roiphe, who is a professor of law at New York Law School. During the course of our conversation, which has been edited and condensed for clarity, we discussed the unique history of the Department of Justice, the specific threats Trump poses to its proper functioning, and whether or not Rosenstein has chosen to carry out his job properly.
Isaac Chotiner: What were the steps—and when were they taken—that ensured the Department of Justice would be an independent institution?
Rebecca Roiphe: The concept of prosecutorial independence predates our country, but was a fundamental and important concept even at the time of the founding. And, of course, there have been many instances of presidents, especially in the early years, trying to control their attorneys general. But those incidents were pretty exceptional. Then, the most important point in establishing prosecutorial independence was the creation of the Department of Justice itself.
So the Department of Justice was created in 1870, and while many people think it had something to do with the Civil War, it really didn’t. It didn’t have to do with Reconstruction. What it had to do with were concerns about waste and corruption. The whole idea of creating the Department of Justice was for it to be within the executive, because at the time federal prosecutors were scattered across the government and various different agencies, and there was a whole lot of overlapping jurisdiction and no clear lines of reporting. So when Congress created the Department of Justice, they did it as a way of reducing waste and getting rid of that kind of corruption—the infiltration of partisan politics into prosecutorial decisions.
It’s my view that that was a fundamental moment in solidifying this norm as the dominant view of how prosecution ought to work in America.
Before the Trump era, what was the biggest threat to prosecutorial independence?
I think the two moments that were the biggest threat were obviously the Saturday Night Massacre, where President Nixon tried to have the special prosecutor fired and went through two attorneys general until he got Robert Bork to do what he wanted him to do, which was fire the special prosecutor. So that was the greatest threat, and then more recently there was the question about the [George W. Bush administration] firing the U.S. attorneys in 2007. That was a little more ambiguous, but people were horrified in part because they felt like the reason that was being given was a pretext for what was actually going on, which was an effort to control prosecutorial decisions by getting rid of certain individuals and installing others in their place.
Why has this norm generally held up? And is it not holding up now just because norms have ceased to work with Trump? Or have Congress or the DOJ or some other institutions—certain checks and balances—not done their part to hold up the norm?
It’s my view that this is more than a norm. It’s actually the law, and there is no constitutional requirement for a president to have absolute control over prosecutorial decisions. And the Supreme Court made it very clear in Morrison v. Olson that Congress has the power to remove prosecutorial decision-making from the executive almost entirely, as long as there are some controls left within the executive, like hiring and firing. To me, that shows that it’s actually a congressional decision, and Congress can remove that power from the president. The question is: When Congress hasn’t acted, where are we? And that’s where we are now. The view we have in our paper is that, well, you look to norms and history to see that Congress must be acquiescing in something.
What are your specific concerns about Trump and the Department of Justice?
It’s almost bizarre because you start with some concerns that seem like reasonable concerns and then your concerns escalate. That’s how this administration works. But at this point I think the concern is really an explicit assault on prosecutorial independence. So especially in opening an investigation, or charging decisions, those are very unique to prosecutorial discretion. I think there is a direct threat to that. In addition to that direct threat, there are more indirect threats, so that every time the president tweets about what his preferences are, what he wants to have happen, what he thinks should happen, what he doubts or doesn’t doubt, it is hard for individual prosecutors not to experience that as pressure. And I think most Departments of Justice, and I think Rod Rosenstein in his own way and Comey before him, were trying to protect the decisions of the career people who worked beneath them from being affected by those public statements.
And the third concern is that I don’t think President Trump believes in anything other than sheer power. I think he has subtly broken down this idea that law is anything other than the exercise of power of one group. And once he convinces people of that, then the rule of law is gone, because there has to be faith. We all know, everybody knows, that there is no such thing as pure law. Legal decisions are complex, and ideological concepts come into them all the time, but they are still distinct sets of rules that are separate from political considerations, and he has done a lot to undermine that notion just by insulting the judges who come out with opinions he doesn’t like and calling them partisan and so forth. I think that’s another way in which he has made it so when this happens—and I doubt it was done with such a concerted effort—but it’s almost like when he gets to this point, he has already eroded the idea that there is any such thing as an independent legal decision. And once he has done that, then his supporters at least view this as just him making a move against his enemies, and that’s not the way our country works.
What do you think of the way Rosenstein has dealt with all this? When I interviewed Jack Goldsmith, he suggested that Rosenstein had to make some compromises to protect the integrity of the Russia investigation, so we should probably cut him some slack.
I think that Rosenstein is doing his best to protect the integrity of the Russia investigation. I think he has made some compromises and I think it’s hard to know whether he was right to make those compromises or not. I think there is some cost to making those kinds of compromises. I do believe his motivation is good and that he shares my ultimate concern about preserving the independence of the Department of Justice. But he has made some compromises in order to do that that are problematic and disturbing. I think he has done them ultimately for good reasons because he believes in these institutions and is trying to protect them so they can do their job, but one might, in the same position, just hold firm and wait until the president fires you and then make this an entirely public drama.
And maybe that will happen at some point.
I am not questioning his judgment in doing this and agree 100 percent that is what he is trying to do, but you can’t really know until this is all played out and you have some degree of hindsight whether this was the right decision or not.
Or we will have all perished in nuclear war and will have no clue about what the right decision was.
Exactly. It doesn’t matter.
One more thing
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