No “Absolute Right” to Control DOJ: Constitutional Limits on White House Interference with Law 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.” But Article II of the Constitution does not grant the president unlimited authority to decide how the law is enforced against specific parties. 

In a constitutional democracy, those in office should not wield state power to benefit political allies and punish 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 Department of Justice (DOJ) on law-enforcement matters involving specific parties.

These policies reflect constitutional principles. In short, in the context of Article II and the Take Care Clause, it is constitutionally appropriate for the president to set generally applicable policies and priorities to enforce the laws that Congress has enacted. But in most cases White House intervention in DOJ’s handling of a specific enforcement matter will run afoul of constitutional constraints. And White House interventions based on the president’s personal or corrupt interests are always unconstitutional.

The constitutional analysis in this white paper expands on those points and has four practical applications. It (1) negates President Trump’s defense to potential obstruction charges, (2) offers a defense to parties harmed by White House interference, (3) provides a constitutional framework for legislation, and (4) seeks to deter criminalization of the president’s political opponents. 

About the Authors

Ben Berwick

Head of Election Law & Litigation Team & Counsel

Ben Berwick leads Protect Democracy's Election Law & Litigation Team. In that capacity, he oversees the organization's work to ensure that American elections are free and fair.

Kristy Parker

Special Counsel, Defending the Rule of Law

Kristy Parker is Counsel at Protect Democracy. She leads litigation to secure accountability for abuses of executive power and interference with government functions, and leads advocacy to reform the Department of Justice and protect its independence from politicization.

Justin Florence

Managing Director & Co-Founder

Justin Florence has overseen the organization’s work to advance its mission, including legal, policy, advocacy and communications strategies, as Protect Democracy’s Managing Director and Co-Founder.

Erica Newland

Counsel

Erica Newland’s work focuses on presidential election reform, Department of Justice reform, and securing accountability for abuses of power.

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Current United States Authoritarian Threat Index score: 2.5/5 Significant Threat

The Score Breakdown

  • Executive Constraints 1.5/5 • Low Threat