Professor Bruce Green co-authored an article for the Alabama Law Review about the power of the president and the Department of Justice. The article, titled “Can the President Control the Department of Justice?,” was recently featured in the Washington Post.
The paper, by law professors Rebecca Roiphe and Bruce A. Green, traces the relationship between prosecutorial independence and the White House throughout the nation’s history. They argue that there is an inherent ambiguity in the idea that the president controls the executive branch, which is supposed to oversee the enforcement of the law, even as prosecutors — and, in particular, the Department of Justice — are supposed to be answerable to the law and are not supposed to be subject to manipulation by the president for political reasons.
As they note, the president’s role as head of the executive branch has led many to argue that the president has total authority to dictate what Justice investigates and how, even involving investigations into himself. (This is the argument that Trump and his allies make.) But this overarching idea has periodically come under strain. As the power of the federal government and law enforcement expanded in the 20th century, the idea of prosecutorial independence developed as a “central norm” that helped “preserve the legitimacy of the system.” After the Watergate abuses, this ideal of prosecutorial independence further became seen as a kind of check on presidential power, which is somewhat paradoxical, since Justice is part of the executive branch.