Trump Ruling Darkens Presidential Shadow Over Justice Department – Bloomberg Law
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By Ben Penn
The Supreme Court’s decision easing Donald Trump’s path to escape prosecution also may have further emboldened him to leverage the Justice Department to exact revenge.
Chief Justice John Roberts tucked a brief passage inside his landmark presidential immunity ruling Monday that’s being interpreted by some as a license for the presumed Republican nominee to intervene in Justice Department investigations contrary to longstanding norms.
“The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed,’” Roberts wrote.
That sentence was placed in a section analyzing why the president is immune from the portion of his pending criminal charges alleging unlawful conversations with DOJ officials.
The 6-3 majority decision, split along ideological lines, granted Trump partial immunity from prosecution, shielding him from charges over some official acts he took while in office.
The outcome returns the case to the trial court virtually guaranteeing Trump will avoid a criminal trial from Special Counsel Jack Smith until after the November election. That would allow him—if he wins—to order his attorney general to end the case.
Some department institutionalists and other legal commentators seized upon Roberts’ line, calling it an alarming invitation for the current political moment, even if it doesn’t necessarily break new legal ground.
“This decision basically gives the green light to the president to do what was previously viewed as unacceptable,” said Leslie Caldwell, who was head of the DOJ Criminal Division from 2014 to 2017.
The constitution doesn’t expressly bar a president from consulting with the attorney general about ongoing cases, but that language is a “very big sea change in the way things are run” and something that can “dramatically erode” the oath department attorneys take to follow the evidence and the law without fear or favor, Caldwell said.
Roberts’ opinion gives future presidents cover to order illegal actions, including “arresting political opponents on wholly fabricated evidence created by his own administration,” said Louis Manzo, a Beveridge & Diamond principal who, as a DOJ trial attorney, obtained seditious conspiracy convictions of four Oath Keepers last year. “For the first administration interested in seizing this new power, the Department of Justice will become simply a tool of the president rather than beholden to the Constitution.”
Jeffrey Clark, the former DOJ official and alleged Trump co-conspirator who’s argued for unbridled presidential power over the department, celebrated Roberts’ aside.
“They’re worried because they think they’re going to be investigated,” Clark said in a podcast interview Monday, referring to the mainstream media “meltdown” over the immunity decision. “The Supreme Court says very clearly in this opinion that the president has take care clause power under Article II of the Constitution. He can investigate whom he sees fit to investigate, working with the Justice Department. And he can prosecute whom he sees fit to prosecute. This is like the shot heard round the world for the deep state.”
Others, including those who champion independence from the White House said Roberts was simply restating a longstanding constitutional principle.
“This is just an expression of the President’s authority under the Constitution over the executive branch, including the Department of Justice,” said William Levi, a Sidley Austin partner who was DOJ chief of staff in the Trump administration. “The importance of ensuring the independence of a criminal investigation or prosecution from improper political interference is a critically important but distinct norm.”
Levi, whose grandfather Edward Levi was known for reclaiming DOJ independence as the post-Watergate attorney general, said that if a president were to inappropriately meddle with prosecutions, “the remedy is not to prosecute him for obstruction.” Suitable responses include the AG’s resignation, congressional impeachment, courts setting aside selectively-prosecuted indictments, or juries refusing to convict, he added.
In claiming Biden has “weaponized” the Justice Department against him, Trump has previously said on Truth Social that he’d appoint a special prosecutor to target Biden and his family and appeared to confirm reports last fall that he plans to direct DOJ to indict foes.
“If I happen to be president and I see somebody who’s doing well and beating me very badly, I say go down and indict them,” Trump said in a November Univision interview.
Whether a second-term Trump administration would actually direct the department to investigate political enemies—as urged by supporters after his New York hush money conviction in May—isn’t yet clear.
But Stuart Gerson, who was a DOJ appointee under President George H.W. Bush and was briefly acting AG early in the Clinton administration, said Roberts might’ve just given Trump carte blanche to do so. That’s something Roberts may have enabled in a separate part of the opinion that says the president’s intent can’t be examined, Gerson said.
Others parsing Roberts’ opinion cautioned against interpretations that he was opining on how presidents can properly involve themselves in prosecutions.
Roberts is “trying to give a certain sense about the limited nature of the acts that fall so within a president’s core executive power that’s so sacrosanct it can’t really be regulated by Congress or by courts—that that is the only area that is completely immune from prosecution,” said Jenn Mascott, a former senior DOJ official under Trump who clerked for Supreme Court Justice Clarence Thomas. By referencing a president’s conversations with the attorney general, “the opinion is trying to give some examples” of what is “a common concept,” said Mascott, who is a Catholic University law professor
To New York Law School professor Rebecca Roiphe, the passage “seems to echo Bill Barr’s view of the Department of Justice as fully controlled by the President.”
Under this theory, if Trump were to order revenge investigations, the only check on this power—before cases reach the courts and juries—would be an attorney general’s refusal, said Roiphe, who has researched DOJ’s history of independence.
“Justice Roberts has not offered a conclusive answer to the question,” Roiphe added, “but has put his significantly powerful thumb on the scale.”
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