Cass Sunstein’s plan to limit the President’s control over the Justice Department

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Cass Sunstein imagines a world in which Donald Trump has almost no control over the Justice Department. In a New York Times Op-Ed, Sunstein offers two statutory proposals to constrain the President’s authority:

In addition, creative legislators ought to be able to thread the constitutional needle — reducing the president’s ability to undermine the legal system without eliminating his power of oversight. For example, Congress might forbid presidential interference with specific categories of cases (such as pending criminal prosecutions). Or it might say that the president may discharge the attorney general only “for cause,” defined to allow the president a fair measure of supervisory control over large policy questions, while also ensuring that the department is legally free from illegitimate interference (as when the president tries to reward his friends and punish his enemies).

I think both proposals would run afoul of the Morrison v. Olson majority opinion. (Without question, both proposals would be inconsistent with Justice Scalia’s dissent.)

Pursuant to the Ethics in Government Act, the Independent Counsel could only be removed for “good cause.” Morrison considered the constitutionality of that law. Chief Justice Rehnquist wrote the majority opinion. He found that such a restriction was constitutional because the President could, through the Attorney General, supervise the independent counsel. That is, the President could take care that the Independent Counsel faithfully executed the law, by virtue of his supervisory authority over the Attorney General.

Here is the key passage from Morrison:

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President’s power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

Sunstein’s second proposal would not “completely strip[]” the President’s power to remove his appointed Attorney General, but it would “impermissibly burden[]” that authority. I do not think a “for cause” removal provision would be consistent with Morrison. And it would not be consistent with Myers v. United States. That case generally stands for the proposition that principal officers, like the Attorney General, must be removable at will.

What about Sunstein’s first proposal: “Congress might forbid presidential interference with specific categories of cases (such as pending criminal prosecutions).” Would this statute be constitutional?

Some people may suggest that such a statute already exists. Several critics of my Washington Post op-ed pointed to 28 U.S.C. § 519. This statute, titled provides:

Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.

Does this statute remove the President’s supervisory power over the Attorney General with respect to specific criminal prosecutions? I don’t think so. I read Section 519 to merely describe the Attorney General’s authority within the Department of Justice’s hierarchy. The statute is titled “Supervision of Litigation.” The statute makes no reference to the President. In the absence of a clear statement, we should not presume that Congress intended to remove the President’s supervisory power over the Attorney General.  Such a statute, I think, would run afoul of the test Chief Justice Rehnquist advanced in Morrison. This mundane statute says nothing about the separation of powers.

I considered discussing Section 519 in my Op-Ed, but as always with column space, I had to make tough cuts. Analyzing Morrison would have taken me too far afield from the topic of the day. In this sentence, I included the word “some” to allude to this issue:

Article II of the Constitution establishes a single president, and all of the executive powers belong to that elected official. As a practical matter, the president delegates some of those powers to the Justice Department — specifically, prosecutorial discretion for criminal matters.

I think that prosecutorial discretion is not delegated by any statute, but is an executive power inherent in Article II. Justice Scalia’s Morrison dissent stated that “Governmental investigation and prosecution of crimes is a quintessentially executive function.” I don’t think the majority disagreed with that statement.

Sunstein’s proposals would not be valid under the Morrison majority. In any event, I doubt there are five votes to sustain Rehnquist’s decision.

As a policy matter, I am sympathetic to the proposals. I wrote in the Post:

I concede that Trump, given his constitutional authority, can punish his enemies or reward his friends. Critics are right to be worried. If we were redrafting the Constitution from scratch, perhaps we would decide such broad powers should not all be vested in the same person. In my home state of Texas, for example, the position of attorney general is separate from the governor — a model that has some virtue over our federal system.

A constitutional amendment would be needed to effect this change.

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