[politics] An “Independent” Justice Department?

Because it’s been in the news – and not just for our current administration; this comes up a lot – I thought I’d look at the Justice Department, and comment on its “independence.” This came up in a recent conversation with a British friend of mine, who drew some interesting parallels I hadn’t realized. Anyway…

The US government is formed of three co-equal branches: Legislative, Executive, and Judicial. Congress passes laws, the Supreme Court interprets those laws when they’re challenged, and the Executive branch does basically everything else.

The US Constitution does not define what the Executive branch looks like. It establishes guidelines for how new cabinet positions are created (the Department of Homeland Security being our most recent), and how secretaries are appointed to those cabinet positions. Apart from that, it’s all undefined.

Congress is actually able to delegate some of its rule-making authority. For example, the Federal Communications Commission is part of the Executive branch, and was established by Congress and empowered to make certain rules and regulations on Congress’ behalf. This is why you’ll see the Executive branch passing what amounts to laws: within a limited scope defined by Congress, that’s exactly what it’s doing.

But in terms of the Constitution, the Executive branch is only given two main tasks: to run the military (the President is the civilian Commander in Chief), and to execute the laws of the United States. So this kind of implies the existence of a Department of Defense (or similar; it hasn’t always been called that), and implies the existence of a Justice Department.

But let’s be clear: the US Constitution does not explicitly define the existence of a Justice Department, nor does it dictate that any such department must be independent. If the Constitution had done so, we’d have four branches of government, with Justice being a top-level, co-equal one that answered to nobody. We don’t have that. Justice works for the President, like any Cabinet secretary.

My British friend was explaining the Royal Assent to me. In a nutshell, when the UK Parliament passes a law, it doesn’t technically become a law until the monarch agrees to it, a process known as “giving the Royal Assent.” In theory, the Queen could essentially veto any law she didn’t like; in practice, that doesn’t happen. The Queen remains apolitical, and the Royal Assent is more or less a rubber-stamp. That kind of approach freaks Americans out, because we like our rules written down and inviolable. “What if she just didn’t give it?” I pressed my friend. “It’s unthinkable,” he answered, absolutely unruffled.

“What if,” he said, “the President’s friends were being investigated for a crime and the President told the Justice department to piss off?” he asked.

“Too soon,” I said.

But he’s a good point: the “independence” of the Justice Department is a lot like the Royal Assent. Presidents don’t direct Justice too closely, because it’d be “unthinkable.” Except, you know, when they do tell Justice what to do. Nothing in the Constitution prevents a President from telling his own employees what to do. Nothing permits Congress or the Judiciary from interfering with Executive branch operations. Sure, you can argue that a President should let Justice operate independently, but should is a far cry from legally must.

And here’s a thought: the President can pardon someone for any Federal crime. So if the President directs Justice to back off of something, you could argue (and some do) that it’s no different than the President exercises proactive pardoning, an enumerated privilege in the Constitution.

There’s a cool, somewhat scholarly article on the subject you might read if you’re interested, and at a meta level it illustrates how a lot of this stuff gets difficult to unravel. The author acknowledges the Constitution’s vesting of full executive power in the President, but writes, “This is a nice theory. Sometimes (though not often) I wish that it were so. But the theory has been repudiated in law, and especially in practice, for a long time.”

The main “legal” guarantee of independence, he writes, boils down to Congress’ legal establishment of the FBI Director’s term as ten years – in theory, protecting the Director from being fired and giving them political protection to pursue justice independently of the politicians. Except, well, when the Director gets fired anyway. That creates political consequences for the President, but the President’s two main political pressures are re-election and the threat of impeachment. Impeachment is a fairly hollow threat; we’ve never removed a President for it and depending on how the parties are aligned, you can pretty much be assured of immunity from anything less the Entirely Egregious.

He goes on to write:

“Every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters. These internal regulations and memoranda, and the norms they foster, acknowledge the President’s ultimate power and responsibility for law enforcement and intelligence while at the same time recognizing that in certain matters, the Executive branch needs internal divisions of authority that achieve a type of independence from presidential control.”

Sure… it’s traditional to make Justice independent, but it isn’t legal. It’s like the Royal Assent, except that in the US we don’t lean on “tradition” for our actual laws. We lean on what’s been written down, and what’s been set as Supreme Court precedent.

He goes on:

“A related check on the President that has been developed and nurtured as a result of these post-Watergate regulations and practices are the cultural self-understandings of DOJ and FBI officials, including (many) political appointees. These men and women share a professional and departmental commitment to the rule of law, one component of which is resistance to politicized influence by the President on their operations.”

Yeah, absolutely. Practices, not laws; resistance, not legal protection.

The author goes on to cite other traditions and practices, and I want to be clear that I’m not trying to render a legal opinion. I’m pointing out that, for all our reliance on written-down laws and enumerated rights and restrictions, the “independence of the Justice Department” relies on tradition and practice, not on laws. Articles like that cite past practice; they don’t say, “well, CFR Part Eleventeen, Section Eight, clearly spells this out,” because there is no law.

The point is that the “independence” of the Justice Department is a blind spot in the US government. We might normally permit the Justice Department to operate independently, but that’s only as long as the Executive permits it; Trump is far from the first President to push the boundaries. In fact, the Inspector General position was established by Congress largely in response to the Nixon Watergate scandal; given that the IG reports to Congress, it’s seen as part of Congress’ Constitutional authority to exercise oversight over the Executive branch.

But Congress’ oversight doesn’t necessarily amount to much. The President, as far as we know, can’t be charged with crimes while in office; Congress’ sole “check” on Presidential abuse is impeachment. But impeachment isn’t a legal process: it’s a political one, and it is (probably justifiably) rarely used and (so far) never successful.

I personally find it fascinating, as a point of law. We actually have a lot of artifacts in our legal system that exist due to tradition and practice, rather than codified laws, but the “independence” of the Justice Department is unique to me because it’s so highly placed. Looking at things like the IG, the FBI Director’s Congressionally mandated 10 year term, and other things, it feels like we want to put some legal independence around the Justice Department, but we’ve never really been able to do so. True independence could probably only come from a Constitutional amendment, but I think people struggle to create one that would accomplish the goal without creating worse problems.

But I guess the message is this: the UK has never modified its Royal Assent, because it hasn’t been abused. If we in the US feel that we want an independent Justice Department, and if we feel tradition isn’t enough to ensure it, then we should adjust our laws accordingly.

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