EEditor's note: This article was originally published on September 19, 2023 with the headline, “Enough of the Justice Department's 'independence' myth.” We're republishing this article today because Democrats, and more than a few Republicans, lost their minds Wednesday when President-elect Donald Trump nominated Rep. Matt Gaetz (R-Fla.) to be attorney general. . Gates said President Trump “will end weaponized government, secure our borders, dismantle criminal organizations, and restore Americans' badly shattered faith and trust in the Department of Justice.” I wrote this.
But Gates' critics don't see it that way. They claim Mr. Gaetz will politicize the Justice Department and threaten its “independence.” — The independence that Dion Katawa so carefully describes exists neither in the constitution nor in the law.
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A powerful and persistent myth plaguing American politics is that the Justice Department is, to some extent, “independent'' from the president. This idea is clearly unconstitutional, actively harmful to the intended operation of our system of government, and contributes significantly to the disruption of our public life. An important step toward restoring sanity to our politics requires eradicating it from our daily practices and our collective consciousness.
If the president is truly in charge of the entire executive branch, he must control all executives and employees.
This myth has its roots in the Watergate scandal 50 years ago. For those who aren't familiar with history, here's a quick overview.
The series of events that most contributed to the creation of the Justice Department's myth of “independence” began on the evening of Saturday, October 20, 1973, with the “Saturday Night Massacre.” President Richard M. Nixon ordered Attorney General Elliott L. Richardson to fire Archibald Cox, who had been appointed in 1973 as special prosecutor overseeing the federal criminal investigation into the Watergate robbery and related crimes. commanded. Richardson refused to fire Cox and resigned. Nixon then ordered Deputy Attorney General William D. Ruckelshaus to fire Cox. Ruckelshaus similarly refused and resigned. Nixon then ordered his next highest ranking official, Attorney General Robert H. Bork, to fire Cox. Bork carried out Nixon's orders.
Nixon's actions that night sparked a firestorm that led to a threat of impeachment in the House of Representatives, an almost certain conviction in the Senate, and ultimately his resignation from office ahead of the passage of the Ethics in Government Act of 1978. . .
The section of the EGA that authorized an investigation by an independent attorney was brought to the Supreme Court in 1988. Morrison vs. Olsona 7-1 majority (Justice Anthony M. Kennedy recused himself) held that the law's independent counsel provision “does not violate the Appointments Clause of Article II of the Constitution.” II, § 2, cl. does not impermissibly interfere with the President's authority under Article 2 in violation of the Constitution's separation of powers principle. ”
Justice Antonin Scalia, the sole dissent in the decision, wrote what is widely considered to be his idea. best opinion. He famously observed this incident:
The Federalist Act would result in “gradual concentration of some powers in the same department” by distributing power among Congress, the President, and the courts in a way that maintained the balance the Constitution sought to establish. 51, p.13 321 (J. Madison), can be effectively resisted. Often, these types of issues end up in court in sheep's clothing, so to speak. The likelihood that an asserted principle will result in a significant change in the balance of power is not immediately obvious and must be identified by careful and discerning judges. analysis. But this wolf comes as a wolf.
Scalia's basic argument was that the EGA's independent counsel provisions are invalid because prosecutorial power is truly an executive power and Article II of the Constitution provides:of “Executive power”—all of it—“shall be vested in the President of the United States,” and any diminution of presidential power virtually Unconstitutional.
Scalia said that while the majority agreed with him, “criminal prosecutions (and investigations to determine whether to prosecute)” are “purely an exercise of executive power” and that the independent counsel provision ” It takes away the power of the president.” “The state has exclusive control over the exercise of its powers,” but does not completely eliminate the president's control over the independent tribunal and may continue to remove lawyers for “just cause.” Therefore, we supported these provisions.
In the end, Congress did not update the Independent Counsel Act. According to the Washington Post, this reported The June 1999 incident “led to the impeachment of Kenneth W. Starr, President Clinton, and 20 other investigations into federal officials over the past two decades.”
From both a constitutional and practical point of view, this was the correct outcome. Mr. Scalia morrison The dissent was prophetic.
If the president is truly in charge of the entire executive branch (academic literature calls this the “single executive theory”), then the president must control all executives and employees. Of course, as a practical matter, the president cannot do that. personally As Article 2, Section 3 commands, you are commanded to “take care that the law is faithfully executed,” but if you are unable to direct the actions of your subordinates as necessary and your subordinates do not obey, If he cannot be removed from office, then he is not actually in charge. .
After all, if money doesn't stop with presidents, what's the point of all the billions of dollars' worth of drama we go through as a country every four years to elect a president?
