Justice Department prosecutors are mere delegates, permitted to exercise the president’s power at the president’s pleasure.
Justice Department prosecutors are mere delegates, permitted to exercise the president’s power at the president’s pleasure.
A t The Hill, Penn law professor Claire Finkelstein offers what I’d call a “government lawyers rule the world” argument that Biden-Harris DOJ special counsel Jack Smith must not drop the charges against President-elect Trump. (As I noted last week, Smith and the DOJ appear prepared to do just that. It’s been widely reported that Smith will leave his post before President Trump is sworn in on January 20.)
In a nutshell, Professor Finkelstein contends that guidance from the Justice Department’s Office of Legal Counsel, on which Smith and the DOJ rely, is either wrong or inapplicable. She adds that Trump could be guilty of obstruction of justice if he (a) fires Smith (after Smith has followed her advice and declined to dismiss the case) and (b) then directs his Justice Department to dismiss the case.
I’m not unsympathetic to her insistence that, strictly speaking, the OLC’s guidance does not apply to the instant situation. I’ve made a similar contention. The guidance is principally meant to deal with the propriety of indicting a sitting president, not a president who is indicted before being elected to office, as Trump was. The guidance, however, is more expansive than that, admonishing that a sitting president may be neither indicted nor prosecuted; the latter arguably makes make it applicable to a president, such as Trump, who comes into office under charges. But even so, I don’t believe the guidance requires dismissal; rather, it would be satisfied by a suspension of proceedings in the case until Trump is out of office.
It appears that Smith is poised to dismiss his cases. I happen to believe that is the better course, but I agree it is not the mandatory course. Consequently, I won’t spend much time on Finkelstein’s other objections to the OLC’s guidance. She argues that the policy advanced by the guidance “is not a constitutional requirement.” That’s true in the sense that the Supreme Court hasn’t ruled on the question of whether a sitting president may be indicted or prosecuted. Nevertheless, the OLC arrived at its guidance by interpreting the Constitution, and even if that interpretation is debatable, it is not patently erroneous.
By contrast, I think the professor is clearly wrong in claiming that the OLC’s policy is in tension with the Supreme Court’s 2020 decision in Trump v. Vance. That case involved only the question of whether a sitting president had to comply with a state grand-jury subpoena, under circumstances in which the state (the Manhattan district attorney) was investigating the president based on private conduct (i.e., not official executive acts). Vance does not bear on the question presented by Smith’s cases — to wit, whether Trump may be prosecuted by the Justice Department, based on official acts, now that he is to be, yet again, a sitting president.
The guidance aside, Finkelstein’s main argument is that if special counsel Smith declined to dismiss the prosecutions and then President Trump fired him, Trump would “arguably” be committing obstruction of justice. This contention, however, is foreclosed by this year’s Supreme Court immunity decision, Trump v. United States.
In Trump, the Court held that the president’s direction of the Justice Department is a core Article II duty and thus immune from prosecution. The Court elaborated that prosecutors are forbidden from doing exactly what Finkelstein urges Smith to do, namely, inquiring into the president’s motive for exercising an undoubted presidential power.
Like it or not, a president is constitutionally empowered to take many actions that have the effect of obstructing criminal proceedings — everything from directions about how the DOJ should exercise charging discretion, to firing prosecutors, to issuing pardons. Such acts are not criminally actionable obstruction because prosecutors are not authorized to inquire into whether their superior, the president, acted corruptly. They may inquire only into whether the president acted within legitimate executive authority; if he did, then there can be no criminal prosecution or even use of such an act as evidence in a criminal trial. (If the president acted outside the ambit of executive power, the acts are not official and are subject to prosecution — after the president is out of office under the above-discussed OLC guidance.)
Finkelstein nevertheless suggests that Trump might be guilty of obstruction if he directed the Justice Department to fire Smith, because such a direction would benefit Trump personally and conceal his potential misconduct. Yet, in Trump, the Court invalidated Smith’s allegation that Trump committed obstruction by directing the Justice Department to take actions that would have both benefitted him personally and facilitated his alleged misconduct (i.e., what Smith alleged were Trump’s knowingly false claims about the 2020 election’s outcome). Again, as long as a president acts within his authority, as he undeniably does in giving the Justice Department directions about prosecutorial discretion and personnel, his actions cannot be prosecuted as obstruction.
Finkelstein further opines:
If the sole purpose of the removal of a federal employee is to immunize the president against investigations into his own wrongdoing, that is a misuse of presidential authority, and one that is unrelated to the protections that the presidency is meant to afford.
Let’s put aside that this proposition would invite prosecutors to inquire into a president’s motives — precisely what the Supreme Court says they may not do. Finkelstein implicitly takes the position that prosecutors are entitled to a presumption of good faith, while the president must be presumed to have engaged in wrongdoing. The Democrats’ lawfare campaign illustrates the imprudence of that approach.
As we saw in Manhattan district attorney Alvin Bragg’s case against Trump, a prosecutor might corrupt the law-enforcement process by selectively indicting a dubious, time-barred case for patently political reasons. And even in Smith’s cases, in which misconduct by Trump was undeniably at issue (we can debate what parts may have been criminally actionable misconduct), we’ve seen that prosecutors may bring cases insidiously timed to inflict maximum political damage — guided by the election calendar, in violation of explicit Justice Department guidance.
A president under investigation might well call for dismissal of a prosecutor (or other federal officer) in the good-faith belief that the prosecutor was using executive power abusively. Even if such a dismissal inured to the president’s benefit, it would not be corrupt. In the Russia “collusion” investigation, for example, Trump knew that there could be no credible evidence that he was in a corrupt relationship with the Kremlin, and that the implication that he might be — by the FBI and DOJ — was made in bad faith. Worse, it harmed his capacity to govern, which was against the national interest. As a result, he fired the FBI director, as he was well within his discretion to do, and he came close to firing the special counsel — which would have been entirely lawful even if politically foolhardy.
Yes, presidents surely do abuse their powers at times, but so do prosecutors. There is no reason for us to assume that one is always in the wrong and the other is always as pure as the driven snow.
And that is a major reason why, in our system, checking abuses of executive power is the purview of Congress, not of Justice Department prosecutors who work for the president. The Justice Department is not a fourth branch of government. It is not independent of the president, and it has no oversight role with respect to the president. It is, instead, subordinate to the president. Justice Department prosecutors are mere delegates, permitted to exercise the president’s power at the president’s pleasure. They have no power of their own.
This does not mean the president is above the law. It means that the constitutional actor empowered to check the president — including by impeaching, removing, and disqualifying him from future office — is Congress.
Let’s say that Jack Smith refused to dismiss the cases against Trump, and that upon becoming president, Trump then directed that Smith be fired and the cases be dismissed. If the House of Representatives believed that Trump had acted corruptly in taking these actions, it could impeach him and subject him to a Senate trial — at which he could be convicted and removed from office.
The Supreme Court’s admonition that neither prosecutors nor judges are entitled to inquire into the president’s motives for executive acts is not applicable to either congressional chamber. Congress has the constitutional authority to move against a president if he issues corrupt directives to the Justice Department — just as they may impeach over a corrupt pardon, a corrupt withholding of federal funding, a corrupt interference with Congress’s duty to certify election results, or any other abuses of executive power.
That’s just not Jack Smith’s job. The federal cases against Trump are being shut down because the Justice Department has come to terms with that fact. I am not insensitive to the forceful argument that impeachment is not a practical solution to the problem of executive excess — indeed, I’ve written a book on the subject. But criminal prosecution is an even more imperfect solution, and the politicization of the justice system wrought by lawfare has proved to be a Pandora’s Box.