Fordham Law Professor Bruce A. Green, the Louis Stein Chair and director of the Louis Stein Center for Law and Ethics, co-wrote an op-ed for The Hill on presidential powers in relation to the Department of Justice, prosecutions, and pardons.
In an attempt to discredit the investigation into Russian interference in the 2016 presidential election, President Trump has claimed absolute control over the Department of Justice. …
If the notion is true, then the president can ignore internal DOJ regulations and fire Mr. Mueller, and he may be able to avoid a subpoena to testify before a grand jury. It may follow, as well, that the president could never be charged with obstruction of justice because he has the power to interfere with a prosecution for any reason.
Yes, the president has power to hire and fire the attorney general. And he can pardon anyone charged with a federal offense. But he has no power to control individual prosecutors. He cannot direct or interfere with their decisions.
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Insulating prosecutors from presidential control allows them to pursue criminal justice without partisan pressure. It allows them to use their professional experience and judgment to be fair and even-handed, a value that is critically important when individual liberty is at stake.
Partisan concerns should play no role in the decision to charge or to dismiss a case, or in any other of the myriad choices that prosecutors make in criminal investigations. … As the Supreme Court recognized in upholding the subpoena for Nixon’s tapes, no one is above the law. This would be an empty platitude without maintaining the prosecutorial independence that has become a cornerstone of American democracy.