Professor Bruce Green, and co-author New York Law School Professor Rebecca Roiphe, tackle Department of Justice independence and congressional involvement in an op-ed in New York Daily News.
New revelations about Jeffrey Clark’s efforts, while serving as acting head of the Justice Department’s Civil Division, to wrangle the DOJ to send a letter to Georgia officials casting doubt on the 2020 presidential election results makes it clear, once again, how important it is for Congress to codify and protect the Department of Justice’s independence.
From the moment then-candidate Donald Trump encouraged cheers of “Lock her up!” at his rallies, and throughout the Trump administration, critics worried about the risk that the president would attempt to control the DOJ and use it for his own political gain. For example, to the consternation of current and former prosecutors, high-ranking DOJ officials appeared to do Trump’s bidding when they dropped charges against Gen. Michael Flynn even after he pled guilty to lying to federal investigators, and when the DOJ officials countermanded the trial prosecutors’ sentencing recommendations after the jury convicted Roger Stone.
We were among the concerned observers who insisted that the president has no power to dictate the DOJ’s decisions about how it uses its prosecutorial and enforcement powers in individual cases — for example, whether to seek to indict one person or drop charges against another. At least since the Nixon administration, and until the Trump administration, this had been the predominant understanding. The president can make policy decisions about how DOJ should generally allocate its resources — for example, to increase civil rights or environmental enforcement generally — but he cannot call the shots in individual cases.
