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On Trump and DOJ, both liberals and conservatives are missing the point

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© Provided by The Hill

By Ilan Wurman, opinion contributor, Tha Hill

In 2006, then-President George W. Bush fired seven United States attorneys. The outrage was immediate. The New York Times wrotethat U.S. Attorneys "must be, and long have been, insulated from political pressure." Many Republicans opposed the firings, too, but others defended the actions on the ground that the president has the constitutional authority or "prerogative" to fire U.S. attorneys, as political appointees, for any reason.

These same themes have repeated in recent days and months, first with the removal of James Comey as director of the FBI, and now with President Trump's directive to the Department of Justice to investigate the Obama administration's apparent spying on Trump's presidential campaign. Opponents of the president pounced: "The Justice Department is independent" and should be "free from political interference," tweeted Sen. Dianne Feinstein (D-Calif.). Former Attorney General Eric Holder tweeted about DOJ's "time-honored independence." And Sen. Jeff Flake (R-Ariz.) similarly tweeted, "Determining who or what is investigated by the DOJ is not the President's call." Numerous conservatives, on the other hand, were quick to point out that the President is actually the constitutional head of the executive branch.

Both sides are missing the point.

Start with Feinstein, Holder, and Flake. The DOJ is not independent. The Framers of the Constitution explicitly rejected a "plural executive" in favor of a single chief magistrate at the head of the executive branch. Thus the president can remove the attorney general from office for any reason - precisely because the DOJ is not independent of the president. And from the very beginning of the Republic, the president and his administration has had directive control over the U.S. attorneys.

As Leonard White wrote in his 1956 book "The Federalists: A Study in Administrative History", in the first decades of the new government the State Department (there was no DOJ back then) directed the kinds of prosecutions the "attornies of districts" were to undertake. John Adam's Secretary of State Timothy Pickering, for example, both instructed the attorneys to prosecute cases under the Alien & Sedition Acts and, in one case, to release a British captain whose arrest caused an international incident. President Washington directed at least one attorney to drop a prosecution and President Jefferson ordered his attorneys to cease prosecutions under the Alien & Sedition Acts.

Not only has the nation's law enforcement function always been dependent on the president's control, but that's exactly how it was supposed to be. The Framers favored a single executive because they feared a plural executive would diffuse responsibility and accountability. Thus Hamilton wrote in Federalist 70that a plural executive "tends to conceal faults and destroy responsibility." "It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall."

Thus, wrote Hamilton, "It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion," and "secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to (effect) their removal from office or their actual punishment in cases which admit of it."

Although Hamilton was countering proposals for multiple presidents, the point is the same if there are executive departments independent of the president.

Suppose that the IRS targets political opponents or the FBI improperly harasses private citizens. The people have no idea whom to blame in such situations, except the one person responsible for the faithful execution of the national laws. What's more, the people can fire the president, by denying reelection. The people have no such power, however, over other executive branch officials who might be abusing power. Their only hope is to hold the president accountable for the actions of these subordinates and to demand the president remove them from office. Yet if these agencies are "independent" of the president, the people have no power to do so.

Which brings us to the flip side of the argument. Although the president has the power to remove the FBI director or U.S. attorneys, and the power to direct their conduct, the president might still abuse power he constitutionally possesses.

If President George W. Bush fired the U.S. attorney to thwart proper investigations into political allies, or if President Trump fired Comey to thwart a legitimate investigation into the President or his allies, they may have had the power to do it but they can still be liable for abuses of power. Thus James Madison argued in a famous debate in the First Congress of 1789 that, although the president had the constitutional authority to remove executive officers, "the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust."

Madison's point can be translated to a more general proposition: just because the president has the power, does not mean that power cannot be abused; and it does not mean the people have no recourse through impeachment or elections.

Both sides, in short, need to stop playing politics with the Constitution. Merely because the president has the power to direct the DOJ does not make any directive a proper one. The president can still abuse power. Conversely, we should not conclude that, merely because the president might abuse power, the president has not the power at all.

Ilan Wurman is the author of "A Debt Against the Living: An Introduction to Originalism". Starting in June he will be teaching administrative law and constitutional law at the Sandra Day O'Connor College of Law at Arizona State University. Previously, Wurman was a nonresident fellow at the Stanford Constitutional Law Center. You can follow him on Twitter @ilanwurman.

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