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On March 9, Protect Democracy released a White Paper entitled, “No ‘Absolute Right’ to Control DOJ: Constitutional Limits on White House Interference with Law Enforcement Matters.” Read the White Paper.  

We also published an op-ed in Lawfare outlining our argument on these issues. Read the op-ed.

We also created one-page explainers on these issues. Read here.

See below for an executive summary of the White Paper.

Executive Summary

In a constitutional democracy, those in office should not wield the powers of the state to benefit their political allies and punish their opponents. In keeping with this principle, for 40 years, Administrations led by both parties have maintained policies limiting contacts between the White House and the Justice Department (“DOJ”) on law-enforcement matters involving specific parties.

These policies reflect constitutional principles that limit the situations in which the White House may interfere in law-enforcement matters involving specific parties. In short, it is constitutionally appropriate for the President to set generally applicable policies and priorities in order to enforce the laws that Congress has enacted. But in most types of cases it is likely to conflict with the Constitution for the White House to intervene in the Justice Department’s handling of an enforcement matter involving a specific party. And White House interventions based on the President’s personal or corrupt interests are always unconstitutional.

The constitutional analysis in this paper has four practical applications.

Negating the President’s defense to obstruction charges. First, we expect the President to continue to assert that he has an unfettered constitutional power to intervene in the affairs of the Justice Department, for any reason or for no reason, and that this provides him a defense in any congressional or judicial proceedings that are based on his obstruction of the Russia-election-interference investigation. This is wrong. The President’s office cannot absolve him of the consequences of his obstructing or otherwise interfering with law-enforcement matters—whether in court or in congressional impeachment proceedings. The first specific application of this paper, therefore, is to negate this defense by showing that the Constitution itself limits the President’s ability to intervene in law-enforcement matters involving specific parties—especially for self-interested reasons.

Offering a defense to parties harmed by White House interference. Second, this paper outlines a defense available to any party targeted by a White House intervention in a specific-party Justice Department enforcement matter.  As this paper explains, such interference runs a serious risk of violating the Constitution, and courts can apply numerous doctrines to address these violations and protect the constitutional rights of affected parties.  Accordingly, we identify a targeted set of interventions that courts are well-suited to, and often do, undertake in these circumstances.

Providing a constitutional framework for legislation. Third, this Administration’s conduct suggests that it no longer makes sense to leave it to the White House to enforce the policies that have traditionally limited improper White House interference in specific-party enforcement matters. Instead, Congress may wish to legislate on this matter. Congress has enacted analogous legislation restricting White House contacts with the IRS on specific-party matters.  This paper provides Congress with a constitutional framework for enacting legislation to restore, and to an extent formalize, the norms that long governed the White House-Justice Department relationship.

Deterring criminalization of the President’s political opponents.  Finally, some commentators have warned that if current patterns continue, President Trump is likely to call for a criminal investigation or prosecution of his opponent in the next election—no matter who that opponent is or whether they have done anything that might conceivably merit DOJ investigation. The President and his lawyers should know that doing so would violate the President’s constitutional duties. It is inappropriate for a presidential candidate to lob “lock her up” charges against an opponent; it is unconstitutional for a sitting President to do so. DOJ officials, including the Inspector General and Office of Professional Responsibility, and Congressional oversight committees, should act accordingly.

The analysis proceeds as follows.

I.      The Constitution Restricts White House Involvement in Specific-Party Enforcement Matters.

In a New York Times interview, President Trump claimed an “absolute right to do what I want to do with the Justice Department.” Article II of the Constitution places the President at the head of the Executive Branch, but it does not cloak the President with unlimited authority to intervene in how the law is enforced against specific parties. Article II, Section 3 states, among other things, that the President “shall take Care that the Laws be faithfully executed.” Nothing in that Clause gives the President an “absolute right” to control specific enforcement matters at DOJ.

Rather, the Take Care Clause places concrete limitations on how the President may enforce the law. The President must act faithfully, in keeping with his Oath of Office to “preserve, protect, and defend the Constitution” to the best of his ability. He may not act for corrupt or self-interested reasons. And he must enforce the laws Congress has enacted, not subvert those laws. While he may shape generally applicable enforcement priorities, he may not prevent the enforcement of the laws that Congress has enacted against himself or his allies.

The Bill of Rights enshrines additional constitutional principles that constrain the President’s interactions with the Justice Department. Even when the Constitution empowers a branch of government to act, it may not do so in contravention of the Bill of Rights.

  • The Fifth Amendment’s Due Process Clause requires the government to follow fair and neutral procedures before denying people important interests. It prohibits public pronouncements of guilt, prosecutions by interested officials, threats of vindictive prosecution, and other forms of prosecutorial misconduct.
  • The Fifth Amendment—which prohibits the federal government from denying to any person the equal protection of the laws—also precludes the White House from intervening in specific-party matters to direct prosecution of disfavored persons or groups or non-enforcement of the law against favored ones.
  • The First Amendment prohibits retaliation based on speech, association, or political activity. Therefore, it would violate the First Amendment for the White House to intervene in a specific-party matter in order to respond to political participation or discourage First Amendment protected activity.

II.      The Justice Department Maintains Key Structures and Procedures to Uphold the Constitutional Principles Described Above; the White House Lacks these Safeguards, Creating a Serious Risk of Unconstitutionality When It Interferes in a Specific-Party Matter.

Key features of the Justice Department have both the purpose and effect of protecting the constitutional principles described above—including faithful execution of the law, due process, equal treatment, and protection of political speech and participation.

  • The Justice Department is statutorily directed and authorized to handle and litigate specific enforcement matters.
  • The Justice Department is staffed almost entirely by individuals who are either civil servants or subject to a Senate confirmation process.
  • The Justice Department is organized, structured, and scaled to handle specific-party enforcement matters in a consistent manner, including with internal oversight offices.
  • The Justice Department maintains—and often makes public—an extensive set of rules and guidelines designed to ensure regularized and fair consideration of specific-party matters.

The White House lacks these features that safeguard adherence to the constitutional principles set forth above.  It does not have statutory authority to handle specific matters; it is staffed with political appointees who serve the President; it lacks the institutional structures and scale to ensure fair and consistent treatment of all parties; and it does not maintain procedures and guidelines for how to enforce the law against specific parties.  Indeed, the only policies that the White House traditionally maintains are those that restrict White House involvement in specific-party matters.

The following consequences follow because the White House lacks the institutional features that the Justice Department maintains to ensure constitutional enforcement of the laws against specific parties.

  • White House involvement in DOJ enforcement matters involving specific parties is constitutionally suspect in most situations. Other than in narrow categories of cases, it will likely violate constitutional commands for the White House to intervene in a specific enforcement matter.
  • There is a narrow set of categories relevant to the President’s specific constitutional duties—such as clemency, national-security matters, and cases that would set generally applicable policy—where the Constitution permits White House involvement in specific-party matters. Even then, though, White House intervention would violate the Constitution if it is for corrupt reasons.
  • The White House should follow careful procedures and policies to ensure that any interventions in specific-party matters are constitutionally permissible.

III.      DOJ Officials, Congress, and the Courts Each Have a Role to Play in Preventing Improper White House Interference with DOJ’s Handling of Specific Matters.

When the President and the White House violate the constitutional principles that maintain apolitical law enforcement, other institutional actors must fill the void to protect the Constitution and the rule of law in our democracy. In particular:

  • Justice Department officials should resist improper interference from the White House in specific matters. And guarding against such interference should be a major focus of the Department’s internal watchdogs, such as the Office of the Inspector General and Office of Professional Responsibility.
  • Congress has a variety of tools to deploy. It should conduct serious oversight of improper White House interference and use the executive- and judicial-branch confirmation process to secure commitments that the White House will not interfere with DOJ inappropriately. It also should consider legislation to limit improper White House intervention in specific-party enforcement matters.
  • In cases that come before them, the federal courts can also check improper White House interventions in DOJ enforcement matters. A series of existing doctrines—prohibiting, for example, selective or vindictive prosecutions and First Amendment retaliation—all can be applied in these circumstances in appropriate cases.

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