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.
Making good on threats to intervene in the U.S. Justice Department’s investigation of possible collusion between his campaign and Russia, President Donald Trump on Sunday tweeted a “demand” that DOJ “look into whether or not the FBI/DOJ infiltrated or surveilled the Trump campaign for political purposes.” The Justice Department quickly announced that its inspector general would expand his ongoing review of investigators’ surveillance applications to determine if “any impropriety or political motivation” tainted the FBI’s early counterintelligence probe.” Deputy Attorney General Rod Rosenstein, who is overseeing the case, promised “appropriate action” if the inspector general concludes the Trump campaign was inappropriately infiltrated.
Sunday’s demand was a stark reminder that President Trump believes he has ultimate power – an “absolute right,” he told The New York Times in December – to control the Justice Department.
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The best overview I found is an article scheduled to appear in this fall’s Alabama Law Review: “Can the President Control the Department of Justice?” Its authors are Bruce Green, the noted Fordham Law ethics expert, and law professor Rebecca Roiphe of New York Law School, who also has a doctorate in history from the University of Chicago.
Green and Roiphe contend that prosecutorial independence is baked into our system by history and tradition, but is the concept too tenuous to survive the Trump presidency?
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Green and Roiphe traced the concept of prosecutorial independence back to British law and explained how the idea strengthened as the federal criminal justice system expanded, especially after the Civil War. They concede that prosecutorial independence is not enshrined in the U.S. Constitution, U.S. Supreme Court precedent or federal law, but it’s become embedded in our criminal justice system.
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Green and Roiphe do present a few examples of presidential meddling: George Washington ordered the prosecution of participants in the Whiskey Rebellion, then ordered the case be dropped. John Adams ordered prosecutions under the Sedition Act.