Protecting Independent Law Enforcement

Department of Justice (DOJ) Independence is a Hallmark of American Democracy

The President recently claimed that he has an “absolute right to do what I want to do with the Justice Department.” This view is anathema to our democratic system of government and shows a profound misunderstanding of our Constitution. The promise that every American will be treated equally under the law and that none is above the law is a bedrock principle of American democracy. Law enforcement free from political influence — real or perceived — underpins all of our other freedoms. In a functioning democracy, those in office do not wield the power of the state to benefit political allies and punish political opponents. The government should not be in the business of picking winners and losers for enforcement based on popularity or political pressure.

For 40 years, Administrations of both parties have maintained policies to protect this bipartisan norm. But while this White House has adopted a limited version of this policy, it continues to violate its own policy and systematically destruct the broader established norms limiting White House involvement in law enforcement matters involving specific parties, as we document in our Law Enforcement Interference Tracker. We have witnessed repeated requests by the President to prosecute his former political opponent, attempts to thwart Special Counsel Robert Mueller’s investigation regarding Russian interference in the 2016 election, and the appearance of political interference in specific antitrust matters to benefit favored companies and harm those that are disfavored. 

White House interventions in law enforcement matters involving specific people implicate some of our most fundamental constitutional principles. As we explain in our White Paper, when the White House intervenes in how the law is enforced to benefit allies or target its opponents, it violates the President’s constitutional obligation to ensure that the laws are faithfully executed, as well as core constitutional principles of due process, equal treatment under the law, and the First Amendment right to participate in the political process.

We’re fighting back to protect independent law enforcement.  On March 8, we filed an amicus brief on behalf of former DOJ officials raising concerns about the appearance of White House interference in DOJ’s decision to block the merger between AT&T and Time-Warner (CNN’s parent company) based on the President’s animus towards CNN.

Among our other actions to fight back, we have worked to: disclose and publicize the policies that our government has historically observed; enforce those norms at DOJ; start investigations into particular instances of potential improper communications between DOJ and the White House; and educate Congress to help it conduct oversight and gain commitments from nominees through its advice and consent power.

It is critical for a functioning democracy that it not appear as though politics plays any part in DOJ’s investigative and enforcement operations, for enemy or friend alike. Authoritarians regularly prosecute and jail their opponents, using criminal prosecution as a tool for political vengeance, and offer favors for political allegiance. Backsliding democratic countries have witnessed such threats, and offer a warning sign for our own democracy. That is why we will continue to advocate to make sure that our law enforcement agencies maintain their independence from the President and remain accountable to the Constitution.

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