New Op-Ed in the Washington Post: "The Constitution does not place a wall between the president and the Justice Department"

"If Trump has the power to nullify a sentence after it has been imposed, he also has the far less significant power to inveigh against the severity of a sentence in advance."

|The Volokh Conspiracy |

The Washington Post invited me to write an op-ed about President Trump, Attorney General Barr, Roger Stone's sentencing. It is titled, "Trump has the constitutional power to intervene in Roger Stone's sentencing. The Constitution does not place a wall between the president and the Justice Department."

Here is the introduction:

President Trump tweeted last week that he has the "legal right" to tell Attorney General William P. Barr how to handle Roger Stone's prosecution — bringing the fury of the legal establishment down on him. Federal prosecutors had recommended a seven-to-nine-year sentence for Stone, who was convicted of perjury and witness tampering. Trump tweeted that the recommendation was "horrible and very unfair." Subsequently, the Justice Department dropped the recommendation.

More than 2,000 former Justice Department employees promptly declared in an open letter that they "condemn" Trump and Barr's "interference in the fair administration of justice." Donald Ayer, who served as deputy attorney general under President George H.W. Bush, wrote in the Atlantic magazine of Barr's complicity in the sentencing shift: "Given our national faith and trust in a rule of law no one can subvert, it is not too strong to say that Bill Barr is un-American."

Un-American? Absolutely not. Unconstitutional? Not even close. Unwise? Yes. As a policy matter, the president should stay out of sentencing decisions, especially those involving his friends. But the president is correct that he has the legal authority to intervene in the case. The Constitution does not create a wall of separation between the president and the Justice Department. To the contrary, the Constitution vests the "executive power" in the president. And the decision whether and how to prosecute someone ultimately belongs to the president.

The original draft included a lengthy discussion of Thomas Jefferson's micromanagement of the Aaron Burr trial. I developed this history for an article I'm working on, tentatively titled "What if Mueller had subpoenaed Trump?" Here are the original sections that were ultimately cut:

In 1807, the Jefferson administration prosecuted Aaron Burr for treason. he was accused of trying to establish an independent nation in the Louisiana territory. The basis for the prosecution was dubious, and President Jefferson withheld certain documents that could have proven Burr's innocence. But more relevant, for our purposes, is the close interest Jefferson took in the case. Throughout the trial, Jefferson frequently wrote to George Hay, the United States Attorney, with precise instructions on how to manage the case.

In one letter, Jefferson wrote that the "prosecution of Burr had begun under very inauspicious symptoms by the challenging & rejecting two members of the grand jury." Jefferson worried that the remaining members would not indict Burr. Jefferson had a preordained result in mind, and was not willing to let the process determine Burr's guilt.  Jefferson also complained that Benjamin Latrobe, who served in his administration, had to testify in the case as a witness. Latrobe's testimony, Jefferson carped, caused a  "great inconvenience." The President added, "I hope you will permit [Latrobe] to come away as soon as possible." Here, the President was dictating the prosecutor's trial strategy..

In another letter, Jefferson urged Hay to "denounce [Marbury v. Madison for] it is not law." Chief Justice John Marshall, who wrote Marbury, also presided over Burr's trial. Hay acknowledged the directive, but ignored it.   Towards the end of the felony trial, Marshall issued a favorable ruling to Burr. Jefferson was incensed. He suggested that "these whole proceedings will be laid before Congress"; Jefferson was arguing, in short, that the record should be preserved to form the basis of articles of impeachment against the Chief Justice. Despite his bluster, there is no record that Jefferson actually sought to impeach Marshall based on the Burr case. Jefferson's intemperate letters are in this respect not that different than Trump's ephemeral tweets.

Eventually, Burr was acquitted of the felony charge. Immediately thereafter, Jefferson wrote Hay a letter that was joined by then-Secretary of State James Madison: "We are both strongly of [the] opinion that the prosecution against Burr for misdemeanor should proceed." If the prosecution is "defeated," Jefferson wrote, "it will heap coals of fire on the head of the judge"  — a reference to Chief Justice Marshall. Two days later, Hay followed Jefferson's order, and sought an indictment against Burr for a misdemeanor charge. Once again, Burr was acquitted.

Let's assume that President Trump in fact ordered Attorney General Barr to recommend a specific sentence Roger Stone. Such meddling would pale in comparison with Jefferson's micromanagement of a high-profile, politically charged treason prosecution.

If we were drafting a Constitution from scratch, it may make sense to divide the executive power up. For example, in my home state of Texas, the Governor is separate from the Attorney General. This system has some virtue over the federal system.

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  1. One point the MSM has driven from this issue; the prosecutors who bumped the sentence from a couple of years to nearly a decade lied to their bosses about it, and lied to the court about facts. They claimed significant ‘enhancement’ die to extreme violent threats. Those threats were poorly quoted lines from ‘The Princess Bride’ (prepare to die cocksucker) that the supposed victim of the ‘threats’ stated on the sworn record were not regarded as threats, but just Stone being Stone.
    They resigned not in righteous protest to Presidential interference, but in anticipation of being fired for insubordination.

    1. One point the MSM has driven from this issue; the prosecutors who bumped the sentence from a couple of years to nearly a decade lied to their bosses about it, and lied to the court about facts.

      And what facts did they “lie” about, exactly?

      The protestations by “senior DOJ officials” that they were blindsided by the recommendations are too conveniently and obviously self-serving to be taken seriously. If you’re going to approach every question about Trump’s abuses of power by taking his (and his lackeys’) word for it, you might as well just put a big MAGA hat on and declare yourself unworthy of serious engagement.

      The impeachment trial gave us plenty of insight into how this administration works. Trump and his cronies understand that he needs to maintain a certain “plausible deniability” regarding his most corrupt acts, and they’re getting better at providing that veneer. That’s what they did on Ukraine, and that’s likely what they’re doing on Stone.

      1. “If you’re going to approach every question about Trump’s abuses of power by taking his (and his lackeys’) word for it, you might as well just put a big MAGA hat on and declare yourself unworthy of serious engagement.”

        ?? The burden is on the people claiming abuse of power to demonstrate the abuse, and show the the purported justification are false.

        1. Stone was found guilty, and a sentencing recommendation was made. Trump tweeted that it was just horribly unfair, and almost immediately thereafter, the DOJ submitted a revised recommendation and several involved attorneys withdrew from the case or resigned from the DOJ.

          Barr claims that this was all just a coincidence, and that there was no coordination with the White House. We have plenty of evidence, both of Trump’s attempts to influence the DOJ (the Mueller Report) and of Barr’s tenuous relationship with the truth, to be skeptical of this claim.

          Where there’s smoke, there’s fire. People claiming that smoke is just smoke, man, and requiring more definitive proof that there is fire, are the ones who are not worth engaging.

        2. They followed the sentencing guidelines.

          Throwing out accusations of lying does indeed put the burden on the accuser.

          1. Ah yes. The “Guidelines.” Which somehow put a non-violent offense of lying to Congress about a non-crime that didn’t affect an investigation a 9 year sentence, in the same category as armed robbery or voluntary manslaughter. A “rate enhancement” that somehow doubled the sentence because of a 10 word phrase or so about taking away someone’s dog.

            In the meantime, you’ve got a different situation where someone lies to the FBI about knowing a reporter (who he’s actually dating) and passing on privileged information about national security issues from the US Congress. And he gets a….2 month sentence. Oh, and a number of Democratic Congressmen and Women weighed in there too. But no outrage.

            2 Month sentence…. 9 year proposed sentence. National security issues….non-crime issues.

            What’s the difference?

            1. You have an issue with the guidelines, specifically with respect to this one guy and also wah wah about some other guy not getting a harsher sentence?

              I knew you were partisan and believed some silly things, but forgive me I thought you had more intellectual integrity than that.

              1. I’m saying similar crimes should get similar sentences. Similar actions by Presidential or Congressional supporters of a person should merit similar responses.

                If the prosecution manipulates the system, by taking a 20 year history of two people talking back and forth with one another in crude-joking terms, and takes two lines out of context to double the sentence, it’s wrong. It’s very very wrong. It’s like adding a “rate enhancement” for jaywalking.

                And if this was anyone but a Trump friend, you’d see how wrong it is.

                1. You are comparing a crime you think happened with an already convicted defendant.

                  That’s ridiculous.

                  1. Both crimes happened. Both cases. Both convictions. In the court record and everything.

                    You should know that. But you don’t, clearly.

                    1. What is the conviction other than Stone’s that you’re talking about?

          2. “Throwing out accusations of lying does indeed put the burden on the accuser”

            Presumably this includes those throwing out accusations that AG Barr acted in the Stone case on instructions from Trump, rather than on his own initiative ?

            1. Except, you know, we have the instructions from Trump written on twitter.

              Are you that naiive?

              1. And we have Barr’s statement that he didn’t read it.

                So, I’m still unsure whether your burden of proof argument applies to Barr as well as to the four resigning prosecutors.

                Only kidding. I’m not unsure at all.

                1. Do you think Barr didn’t read it?

                  Sentencing hearing seems to indicate there was no lying.

                  1. No, I dont think Barr saw it. He’s said he didn’t see it – also that he’s not a Twitterette and never looks at tweets unless someone draws them to his attention. And I’ve seen no evidence, to date, that contradicts him.

                    It is perfectly possible (and consistent with Barr not lying) that somebody in the DoJ who had seen the sentencing recommendation contacted Barr and said “WTF, we’ve recommended 7-9 for Stone ? I thought we’d agreed to punt ? ” And Barr said “WTF right back’atcha. Find out what happened.”

                    Or maybe the somebody had just seen the Trump tweet and inititiated the same conversation without mentioning that his information had come from the tweet. Or maybe somebody who saw the tweet talked to somebody else who talked to Barr. There are zillions of ways that Barr could have found out about the recommendation without having seen the Trump tweet.

                    Presumably Trump, or his tweet-bot, had to get the info from somewhere and that somewhere could have been the source directly or indirectly of Barr’s knowledge. The notion that Barr couldn’t possibly have found out other than from reading Trump’s tweet seems utterly bizarre to me.

                    As to lying, I saw a bit of a Kim Strassel article (the rest was behind a paywall) which indicated that “sources” had said that there was no lying. Instead the process was that there was a discussion, before the recommendation went in, involving Barr and O’Shea (and possibly others) which was that the Fab Four’s recommendation was way over the top and that the recommendation should be pretty much what the later “correction” said. However when O’Shea took that conclusion back to the Fab Four they threatened to resign and O’Shea had “a moment of cowardice” and caved. Hence the 7 to 9 recommendation went in.

                    It came as a surprise to Barr when he found out about it (not, according to Barr, from Trump’s tweet) and he ordered a correction. Whereupon the Fab Four resigned from the case.

                    This was a couple of days ago and I have hardly been glued to the saga, so things may have moved on. But so far I’m perfectly prepared to believe that the Fab Four didn’t lie to their bosses about their sentencing recommendation.

                    1. The DoJ at the sentencing hearing told the judge that the original sentencing recommendation was done above board. The issue was with the AG’s ‘expectations’ being miscommunicated.

                      These expectations were the deviation from the norm.
                      Lots of articles going over that exchange. Unless you think that was a lie as well.
                      The DoJ representative was one of the signatories on the second sentencing recommendation, btw.

                      Your lengthy tap dancing about what seeing on Twitter means should make you wonder why you keep having to work so hard to justify what keeps looking like lying.

                    2. Aaaaand……Lucy pulls the football away again.

                      You’re discussing whether the Fab Four lied with other people. What you’re discussing with me is whether your burden of proof to show someone is lying applies to Barr as well, ie whether you apply your “burden” impartially. Or just when it suits you.

                      Anything in the sentencing hearing to indicate that Barr lied about not seeing the tweet ? No, thought not.

      2. Truly sad that SimonP has a reading comprehension issue.

  2. It is strange to me that you spend so much time “developing” the Jefferson comparison – feeling obliged to provide us further, irrelevant detail here – without ever making a constitutional argument from this history. That is, normally, I would expect a scholar making the point that the Constitution provides for this-that-or-other power or arrangement, when discussing some historical example like this, to make the point that contemporaneous historical practices lend us important insight into the present analysis.

    Is there a reason you don’t make that point? Is it because you neglected to do so? Or is it because you lack support for making that argument?

    Because, absent some link to the constitutional argument you purport to be making, the only function of the Jefferson example, rhetorically speaking, seems to be to minimize Trump’s abuse of power. Maybe you expect your readers to lend your argument with some credence due to Jefferson’s “prestige.”

    Strictly speaking, your only constitutional argument here seems to a bare reading of the Constitution itself, along with some cursory hand-waving about a unitary executive theory in response to critiques of your bare reading. I mean, apparently. You’re not very clear about that, either. Is that all you’ve got?

    1. The Constitutional argument is just so plain and concise that it hardly needs to be brought up: “The executive Power shall be vested in a President of the United States of America.”

      Unless there is some contrary Supreme Court case that you know of, that’s all that needs to be said.

      1. The Constitutional argument is just so plain and concise that it hardly needs to be brought up: “The executive Power shall be vested in a President of the United States of America.”

        So what does the “executive power” entail, exactly?

        1. I would have thought that “executive power” includes police and prosecution is so well settled as to not need mention on a legal blog. Are you questioning that definition? If so, on what basis?

          1. I would have thought that “executive power” includes police and prosecution is so well settled as to not need mention on a legal blog. Are you questioning that definition? If so, on what basis?

            We’re not talking here about what is “well-settled” – which is really just a way of referring to the robust body of constitutional law that has developed around the Constitution. If we were speaking about what is “well-settled,” then Josh’s assertion about what the Constitution says about the independence of the DOJ would be irrelevant.

            The Constitution, itself, does not ascribe to the “executive power” any law enforcement function that I can discern, apart from the pardon power. The argument that the “executive power” entails “police and prosecution” has to be read into powers that Congress can arguably be said to have (again, not even Congress is expressly authorized to create a federal criminal law, as currently in force) and can constitutionally be said to have delegated to the president.

            And that’s fine, but again the point I’m making, to Kazinski, is that the argument is not “so plain and concise” that it can be read directly from the constitutional text itself. You can’t claim that something is “plain and concise” on the face of the Constitution and then take a reading that’s actually built on centuries of caselaw to be self-evident.

            Don’t condescend to me if you can’t properly engage.

            1. The vesting of executive power in a President is clear from the text. Executive power includes prosecutorial power. Q.E.D.

              But I want to push back harder on this notion that there’s some sort of “Constitution” independent of the common law system of precedents that we use to interpret it. The Constitution isn’t the Protestant Bible, where every believer gets to interpret it however he or she wishes to. That Constitution sets up a common law system of courts whose job it is to say what the law is. What they say matters, and is, fundamentally, part of the Constitution.

              1. The whole discussion elides over whether or not the mere recommendation of a sentence is an exercise of executive power to begin with. The judge knows what the career prosecutors think the sentence should be, and she knows what Trump thinks the sentence should be.

                1. I think that’s correct.

                  Having said that, the way the system works nowadays already countenances that elision of the separation of powers. The prosecutor’s recommendation, like the guideline sentence, carries a lot more weight than it should, with judges deferring to it.

                  (Indeed, a cynical take on these judges who are protesting is they don’t want “politicized” DOJ recommendations because they don’t want the system where sentencing is outsourced to the DOJ to end, because then they would have to do it themselves.)

                  1. As an old man, it seems to me that the development of sentencing guidelines was in response to Republican concerns about liberal justices being too easy on criminals. Now we have “Republicans/conservatives” whining about how unfair application of those guidelines are to members of their tribe. I’ve gotten use to this type of sleight of hand.

                    1. It wasn’t just conservatives. Stephen Breyer, now a liberal Supreme Court justice, was a major author of the guidelines.

                      There’s a certain sort of liberal who tends to be ridiculously pro-prosecution, believing prosecutors to be civil servants with scrupulous ethics, and believing that the basic purpose of the justice system is to do formulaic justice, because such justice is “equal”. A lot of those liberals supported the Guidelines, because they thought of it in terms of the end of the days when, say, a black defendant would get 5 years for robbing a liquor store while a white defendant got 6 months, or a rich defendant would get 2 years for a theft while a poor defendant got 10.

                      The problems, of course, were manifold. First, the whole idea was wrong- you can’t protect the rights of the accused or the vulnerable while subjecting everyone to the mathematical precision of the guidelines. Second, the guidelines were really written based on the presumption that everyone who is prosecuted is guilty and that prosecutors should control the outcome of the case through charging decisions. Etc.

              2. The vesting of executive power in a President is clear from the text. Executive power includes prosecutorial power. Q.E.D.

                Nothing in the Constitution says anything about prosecutorial power, so it seems you still have something to demonstrate, bro.

                1. As I explain below, we got these terms “executive”, “legislative”, and “judicial” from the British system. And in that system, prosecution was a Crown prerogative, i.e., an executive power.

                  And we know it remained one because the DOJ was one of the first Cabinet agencies created. I.e., the first President and the first Congress (many of whom were drafters of the Constitution) agreed on this.

                  Seriously, this is not important- the fact that we treat it as an executive power now suffices- but if you must pollute these threads with originalist JAQing off, there you are.

                  1. Josh is the one making the originalist argument. I am simply engaging it on its own terms, as far as it goes.

                    1. Josh’s argument is correct. The “wall” has arisen out of custom and practice and prudence. But no serious scholar would doubt that the Constitution vests the President with control over the prosecutorial power, and no courts have seriously questioned this.

                  2. “DOJ was one of the first Cabinet agencies created”

                    Not really. The AG was one of the original cabinet members but DOJ was not established until 1870.

                    According to an ALI articled cited by wikipedia, before DOJ was created, local US attorneys did not report to the AG.

                    1. OK, I stand corrected. But obviously the first Congress saw the AG as part of the executive branch.

                2. The Constitution clearly contemplates in several places that there will be criminal prosecution of (some) federal crimes. Let me know if you need me to prove this.

                  So the question is, who is to prosecute those crimes on behalf of the United States? The only possible answer is a member of the Executive branch, since by definition prosecuting someone is an executive function of government, and is included in the presidential duty that “he shall take Care that the Laws be faithfully executed,” the antecedent of “he” being the President.

                  Neither the Attorney General nor the DOJ are mentioned anywhere in the Constitution, and it is clear they are officers appointed and controlled by the President.

                  1. Bored Lawyer, in your view, does “faithful” execution extend to making the president a judge in cases where his own interest is implicated?

                    1. The president is not a judge. That’s the job of the Judicial Branch.

                    2. As AL said, we are not discussing judging, which is an Article III function. We are discussing controlling the Dept. of Justice, which represents the United States in court, and, in criminal cases, manages prosecution, including determining who will be prosecuted, what they will be charged with, what sentence will be sought, and other prosecutorial functions.

                    3. Armchair and Bored, nonsense. It is the job of a judge to determine sentencing. Trump has now intervened in the Stone case to try to ease Stone’s sentence. As a practical matter, he is doing in Stone’s case what a judge might do—looking at the evidence (ha, ha), and deciding what an appropriate sentence might be, under the guidelines. And by doing that, given the context, and Stone’s history as a Trump henchman, Trump is acting as a judge in his own case as well. Trump is trying keep the law at bay in his own case by reducing the pressure on Stone, who still might testify against Trump. Apparently, Trump is trying to avoid the political cost of achieving the same result by an immediate pardon, which would of course brand Trump as corrupt.

                      What Trump is trying to do is utterly corrupt, and you guys know it, but abet it. Perhaps your pseudonyms are cover for a couple of Republican Senators.

                    4. Stephen.

                      We’ll say it again. Trump is not the judge. Trump does not make the sentence. That is the job of the judiciary branch.

                      Trump can voice his feelings on what the sentence should be, just like any other American can. Congressmen can (and have). Prosecutors can. The defense can. But the judge decides.

                  2. “So the question is, who is to prosecute those crimes on behalf of the United States? The only possible answer is a member of the Executive branch”

                    The obvious answer is to put prosecutors in the judicial branch, since they’re officers of the court.

                    1. Yeah, like they do in the Napoleonic code countries. Having a judge combined as the prosecutor is just a terrible idea.

                3. Nothing in the Constitution says anything about prosecutorial power, so it seems you still have something to demonstrate, bro.

                  Hmm.

                  he shall take care that the laws be faithfully executed

                  By prayer alone, presumably ?

            2. Indeed, the federal government has rent the Constitution beyond recognition, exceeding its numerated powers in many ways, not the least of which is the development of a general federal “police power.” https://www.cato.org/sites/cato.org/files/serials/files/cato-handbook-policymakers/2001/9/hb107-16.pdf

              However, when it comes to the execution of the laws, whether such laws have a legitimate basis or not, the definition of “execute” is basically synonymous with “enforce.” The words pretty much mean the same thing.

              There are great issues here to be discussed about the scope of federal power. But when it comes to your question “what does the executive power entail,” vis a vis the remainder of federal power, your answer is simply:

              Everything that’s not a legislative or judicial power.

              1. Or perhaps more precisely:

                Any power not vested in Congress or the courts is vested in the President. Nothing can be vested in anyone outside these three.

                1. That’s not what the Constitution says, ML.

                  Nor is there much support for such a negatively defined scope.

                  1. Literally, nothing in the Constitution contemplates or vests any power in anything except the Legislature, Executive, or Judiciary.

                    1. Your textualism is failing.

                      If the Founders meant to have some nebulous ‘federal power’ and then put it into three boxes, they’d have said something about that.

                      Instead, as conservatives used to be so fond of reminding us, they delineated specific positive powers for each branch. No branch has their powers defined negatively.

                    2. “No branch has their powers defined negatively.”

                      Fair point. But, as I said above, the Constitution clearly contemplates criminal prosecutions.

                      So in which box — Legislative, Executive or Judicial — would you put the power to prosecute a criminal case on behalf of the United States?

                    3. Sarcastro, it is absolutely what the Constitution says. The federal government is limited to its enumerated powers. Those powers are vested in Congress, in the courts, and in the Executive. No one else.

                    4. “If the Founders meant to have some nebulous ‘federal power’ and then put it into three boxes, they’d have said something about that.”

                      Holy cow. Have you even read the Constitution?

                    5. No, ML, the Federal Government is not so limited, each individual branch is so limited. There is no undelineated free-floating power that needs to be allocated.

                      ML, you’re the one not reading the Constitution. It’s set up in three branches. There’s no mention of the Generalized Federal Power, followed by divvying it up. That’s the paradigm you’re putting forth, in the service of maximizing executive power.

                    6. So in which box — Legislative, Executive or Judicial — would you put the power to prosecute a criminal case on behalf of the United States?

                      I would put it in a fourth box, the Sovereign Power box. Which ought to occur to anyone who has ever heard of a case titled, “The People vs. . . .”

                    7. Stephen:

                      1. “The People vs.” is a fiction. My state, California, uses that fiction. It doesn’t ask my permission before deciding who to prosecute, nor should it. And it doesn’t speak for me.

                      2. The United States doesn’t use that fiction anyway. Federal prosecutions are made in the name of the United States, not the people. Federal prosecutors are said to represent “the Government” (and call themselves that), not “the People”, in court.

                      3. Even if I were to accept your completely made up theory of “Sovereign” power, we received our system from the English. What kind of power is sovereign power? It’s executive power. Why do I know that? Because in the traditional English system, the executive branch performs its duties in the name of the King or Queen.

                      If prosecutorial power is sovereign power, it still resides in the executive branch, because that’s where it resides itself in a system with an actual sovereign.

                    8. “I would put it in a fourth box, the Sovereign Power box.”

                      All of the Constitutional powers are Sovereign powers. The powers to make laws are sovereign powers, which are vested in Congress. The power to judge cases is the judicial power, and is vested in Article III courts.

                      And the power to execute and enforce laws is vested in the Executive branch. Part of that is the prosecutorial function (i.e., in criminal cases). This is really basic stuff.

                      If you are correct that there is a “fourth box,” then NO ONE can prosecute a criminal case on behalf of the United States, which is absolutely absurd, considering that the Constitution itself contemplates criminal prosecutions in several places, and is contrary to all practice from the very inception of Constitutional govt.

                    9. “Literally, nothing in the Constitution contemplates or vests any power in anything except the Legislature, Executive, or Judiciary.”

                      Fail.

                      There’s the states. And the people. And the well-regulated militia.

                    10. Bored Lawyer: If you are correct that there is a “fourth box,” then NO ONE can prosecute a criminal case on behalf of the United States, which is absolutely absurd, considering that the Constitution itself contemplates criminal prosecutions in several places, and is contrary to all practice from the very inception of Constitutional govt.

                      I am correct. What you overlook is that by asserting a unitary control of prosecution, Trump is asserting an ability to prosecute on behalf of himself alone, instead of on behalf of the sovereign people generally. Trump is not the embodiment of American sovereignty, and he is not free to assert his own will is the sovereign will. That is where Trump goes off the rails. The tradition of prosecution, going back centuries, has always been that it represents sovereign power, not just executive power.

                      Sovereign power is far broader, and less constrained, than executive power. For instance, sovereign power is not constrained from depriving a subject of liberty, or even taking the subject’s life—things which no president has power to do.

                      Sovereign power is not at all equivalent to executive power, not in theory, and not in history. That has been as true in this country as it was in England.

                      Under the American Constitution, Trump is not the lord of prosecution, he is the supervisor of prosecutors, who, when they prosecute, act as subjects of the sovereign People, according to the People’s will, not according to Trump’s will. That is why the criminal cases are titled, “The United States of America vs., etc.,” and not titled, “The President of the United States vs., etc.”

                      Note that the civil cases are titled differently, as in “Marbury vs. Madison,” with the names of civil officers featured. That is because in the civil law the sovereign power of the People is not implicated. Hope that helps you understand the distinction.

                  2. It’s a logical paraphrase of what the Constitution says.

            3. So precisely what definition of “executive power” do you think the Founders intended and what is your evidence that it does not (or at least, might not) include police and prosecution?

              Remember as you cite your sources that the Founders were well aware of the full history of governmental structures to that point and that they were writing the constitution and using phrases as they were commonly understood at the time. I am aware of no government up to that point which declined to include police and prosecution as an executive power. I’m not even aware of a contemporary interpretation that puts police and prosecution anywhere else.

              1. Hell, even at the city level; the prosecution is under the Mayor aka Executive not the Council (Legislative) nor the Court(s) (Judicial)!

                1. Depends on what city you’re in.

            4. (again, not even Congress is expressly authorized to create a federal criminal law, as currently in force)

              Among other powers granted Congress are the powers:

              To provide for the Punishment of counterfeiting the Securities and current Coin of the United States

              To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

              Pretty clear that Congress has some power to define federal crimes.

              And today it is generally accepted that Congress can create criminal laws pursuant to its other powers. The power “To regulate Commerce with foreign Nations, and among the several States” includes the power to regulate that commerce through criminal statutes (e.g,, criminal fraud statutes that deal with interstate or foreign commerce).

              1. Interestingly, the First Congress in 1790 passed a Crimes Act that contained 21 categories of crimes, including:

                1) treason; 2) misprision of treason (deliberate concealment); 3) willful murder occurring on federal property; 4) rescue/attempted rescue of a body following an execution; 5) misprision of felony; 6) “man-flaughter”; 7) piracy; 8) “acceffory before the fact”; 9) “acceffory after the fact”; 10) confederate to piracy; 11) maiming; 12) forgery/counterfeiting/falsifying federal securities or coin; 13) altering/corruption of federal records; 14) larceny; 15) receiving stolen goods; 16) perjury; 17) subornation of perjury (contracting with another to commit perjury); 18) bribery; 19) obstruction a federal officer; 20) rescue of an inmate; and 21) violation of safe conduct/passport.

                See here for more discussion:
                https://www.statutesandstories.com/blog_html/crimes-act-of-1790-1st-federal-criminal-law/

        2. Is this a real question?

          The scope of executive power is debatable. What’s not debatable is this: any federal power that isn’t legislative or judicial is executive power. Everything goes into one of the three buckets. You don’t get to set up extraconstitutional fiefdoms outside of these three areas.

          1. Exactly. You can doubt – not seriously, but for amusement – whether there is any prosecutorial power vested in the federal government. What can’t be doubted is where it lies, if it does exist.

        3. Control of the executive branch. It’s kind of in the name.

          1. Great – two comments telling me that the “executive power” is just whatever the “executive branch gets to do.”

            Somehow less insightful than Josh’s point.

            1. The courts have told us what executive power means. But if you really insist on having a meaningless first principles argument, seriously, nobody doubts that prosecution, a power held by the Crown in England, where we got our legal system from, is historically part of the executive power. The Justice Department was one of the original cabinet agencies, dating all the way back to the Washington Administration. Seriously, nobody doubts this.

              1. If you have to make the argument by referring to English precedents and what the courts have told us, then it’s not “plain and concise” in the Constitution, is it?

                1. Simon, at this point, you just need to take a class. Seriously.

                  The Constitution is not an instruction manual. It is cast in broad terms and uses language that refers to previous precedents and longstanding traditions. Everyone at the constitutional convention intended to create a system that built on the English common law system that they knew and respected. They wanted to separate powers more than was the case in England, but they used the terminology of the English system to describe the powers they wanted to separate.

                  I am really not an originalist- as I said, to me it suffices that we have court rulings that set the constitutional meaning. But if you insist that we go back to the Constitution, yes, while there are ambiguities about the terms “executive”, “legislative”, and “judicial”, the locus of the prosecution power is not one of them. It was an executive power in England, every lawyer in 1787 knew that, and everyone understood that it would be part of the “executive” power. And we know this because the first Congress authorized, and Washington staffed, the Department of Justice.

                  This is about as clear as constitutional meaning ever gets.

                2. Yeah, what Simon said. When it says “the President shall be commander in chief of the army and the navy” it doesn’t even say what an “army” is, or a “navy”. They could be almost anything.

                  1. And how the heck did he become Commander in Chief of the Air Force?

                    1. The Air Force was originally the Army Air Corps.
                      As CiC of the Army, the Prez inherited the Air Force.

                    2. Constitutionally, the Air Force is an “army”.

                      Note that the wording of the Constitution allows us one Navy but multiple armies. Note also that the funding for the two is different. Army appropriations are limited to 2 years. So are the Air Force’s. Navy appropriations are not so limited. (Though, in fairness, Congress and DoD both play games to get around that appropriations limit.)

                3. How about this, then?

                  [The President]shall take Care that the Laws be faithfully executed

                  U.S. Const. art. II, § 3.

              2. The Justice Department was established in 1870. US Attorneys and the Attorney General do go back to the beginning, though, and your larger point is surely correct.

            2. “Great – two comments telling me that the “executive power” is just whatever the “executive branch gets to do.”

              Well, yeah. The very thing people are complaining about is the fact that Trump as the power to affect his will. If Trump says, “Congress ought to do X, Y, and Z”, nobody would be complaining about whether Trump interfered in the legislative process. But when Trump says that Stone’s sentence recommendation is to light, Trump can fire the boss of the person making the recommendation, so people will tend to listen to Trump. But of course the reason he has that power is to affect the behavior of the people in the justice department.

              1. The great thing there is, no matter what recommendation is made, it’s the JUDGE who ultimately decides the sentence.

                And the judge (under the judicial branch) doesn’t need to listen to Trump at all.

                Isn’t a divided government great?

            3. Well, without defining the outer limits, one can definitely say some things are included.

              (1) Article II explicitly states:
              “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices”
              So the POTUS could definitely ask an Attorney General “why the hell did your people seek a nine year sentence for Stone?”.

              (2) After Myers v. US it’s clearly established that executive officers serve at the pleasure of the president. Don’t know about assistants and staff, but US Attorneys are executive appointments.

              So the POTUS could definitely tell the AG or a US Attorney “I am not getting pleasure from your actions on the Stone case. My absence of pleasure could have consequences”.

              As Prof. Blackman says, it might not be wise, it might not be ethical, and if the motives are corrupt it might even be illegal, but it’s unquestionably constitutional.

              1. It’s really as simple as that. The President can fire (or accept the resignation of) any Cabinet officer or subordinate who doesn’t do what he wants. The Constitution doesn’t mandate integrity. The consequences are political, not legal.

                1. The Constitution doesn’t mandate integrity.

                  Yes it does. In the Take Care clause. Several have already mentioned that, including me.

            4. Article 2 says a lot about what they get to control. Commander in Chief so they’re the head honcho for our military, granting pardons and commuting sentences, appointing ambassadors, judges, etc., Congress can (and has) extended legal authority, as permitted, to defer to the President to appoint inferior officers, heads of departments, etc.

              Now I have no idea if the DOJ itself is Constitutional (I’m going to assume it is), but assuming that it is, that means it is part of the executive branch and the President is the head of it, as he may appoint an Attorney General, confirmed by the Senate, and instruct him to execute the functions of the DOJ as stated by HR 1328 passed by Congress and signed into law by Pres. Grant as well as various other functions that have been authorized since then.

            5. “Great – two comments telling me that the “executive power” is just whatever the “executive branch gets to do.”

              Simon

              Here is a cite to a law review article discussing the point Dilan and others are making

              Orin S. Kerr, A Theory of Law, 16 GREEN BAG 2D 111 (2012).

        4. “So what does the “executive power” entail, exactly?”

          Did you fall asleep in 11th grade American Government?

          But maybe it isn’t quite as simple as I made it out, while the “executive power” surely encompasses all the cabinet departments, there is one other constitutional provision that is germane: the President is specifically charged “he shall take care the laws be faithfully executed” .

          That seems to indicate he has a responsibility to speak out of he thinks an injustice is being done and the law is not being faithfully executed.

          One more provision might come into play: ” he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices”.

          There you have it.

          1. In fact, by law he made NEED to speak out if he feels an injustice is being committed. Like a sentence recommendation that seems horribly out of line with the actual offense.

        5. Literally everything the Executive Branch is doing now.

  3. Donald Ayer was forced out as Deputy AG and succeeded by Barr, who later became AG.

    The comments of bitter people should be taken with a large grain of salt.

    1. That’s extremely dismissive of clingers, Bob.

  4. Trump should stay out of it until he decides to commute the sentence or issue a pardon. But as a legal matter, the first sentence of Article II is dispostive: “The executive Power shall be vested in a President of the
    United States of America.”

    It also seems somewhat strange that the President seems to be the only person in the entire United States that is not allowed to have an opinion on Roger Stones sentencing. I think it would be much more unseemly for a president to be tweeting or opining about getting a conviction, or a harsher sentence for someone because that tips the balance too far against an individual already facing the weight of the US government. But asking for leniency or forbearance is much more acceptable especially for non-monetary victimless crimes.

    1. But asking for leniency or forbearance is much more acceptable especially for non-monetary victimless crimes.

      The sentencing recommendation was based on federal sentencing guidelines for the crime that Stone actually committed, including enhancements provided for by federal law. What sense does it make to argue for “leniency,” in the face of that framework, when it would seem the framework already incorporates all of the factors that ought to be taken into consideration?

      In other words, the law already provides for the appropriate penalty for a “non-monetary victimless crime.” What further “leniency” is required?

      1. ” including enhancements provided for by federal law.”

        Yes, and the argument here is that the prosecutors were a bit disingenuous in justifying those enhancements, and then were careful not to let their superiors know what they planned to do, because they knew they’d be told not to.

        They wanted to get the sentence recommendation to the judge BEFORE being overruled.

        1. Yes, and the argument here is that the prosecutors were a bit disingenuous in justifying those enhancements, and then were careful not to let their superiors know what they planned to do, because they knew they’d be told not to.

          Is this “argument” based on any evidence whatsoever?

          1. AG Barr’s statements.

        2. Yeah, that argument is made completely ipse dixit, and everyone in t the legal community seems united in realizing it’s BS.

          Except for you. Such faith in people, you have. If they’re on Trump’s side, that is.

      2. The sentencing recommendation was based on federal sentencing guidelines for the crime that Stone actually committed, including enhancements provided for by federal law.

        It’s worth noting that while the court decisions you decry are actually law, sentencing guidelines aren’t, really. They are advisory, a rule that is constitutionally required because they impinge on a core jury function. See the Booker and Fanfan cases.

        The judicial system has a great deal of authority to depart downward from guidelines. Indeed, they should do it more often- the guidelines were written from a prosecutorial point of view and are draconian.

        1. I understand that the guidelines are not mandatory. What I am saying is that it’s meaningless to speak of “leniency” owed due to the nature of the crime being punished itself.

          You might argue that a burglar deserves a light sentence for a first offense not involving injury to any other person. You wouldn’t argue that a burglar deserves a light sentence because a burglary’s just an unlawful seizure of property.

          1. What I am saying is that it’s meaningless to speak of “leniency” owed due to the nature of the crime being punished itself.

            A big reason the guidelines cannot be constitutionally made mandatory is that this is not meaningless.

            The guidelines can be wrong in at least two ways:

            1. The guidelines can simply set the wrong sentence for an offense writ large, or the wrong enhancements. In other words, the sentencing commission can simply be overly pro-prosecution.

            2. The guidelines sentence, though not wrong in theory, may make little sense when applied to the defendant’s specific acts. This happens all the time when prosecutors overcharge defendants. It is also related to the “trial penalty”, where defendants are punished for not taking plea deals.

            I am not making any argument on either of these with respect to this specific case, except to say that 7 years is a draconian sentence for all but the most serious crimes (an argument I am afraid I have been losing all my adult life). But it makes perfect sense to say something like “Stone’s guilty, but what he did didn’t deserve 7 years in prison, so the original prosecutors were wrong to ask for it, whatever the guidelines may say.”

            1. But it makes perfect sense to say something like “Stone’s guilty, but what he did didn’t deserve 7 years in prison, so the original prosecutors were wrong to ask for it, whatever the guidelines may say.”

              Yes. But it also makes sense to say, “But a presidential crony is not the place for a sui generis departure from those guidelines” based on that theory.

              (The very same day that Barr did this, he gave yet another ranting speech about local prosecutors not being harsh enough. Which is frankly none of his business.)

              1. IIUC you prefer rapists and murderers to receive lighter sentences than Stone because “Orange Man Bad”?

                1. Remember how I already explained to you that every single post you started out with “IIUC” was wrong?

                  Your streak remains intact.

              2. it also makes sense to say, “But a presidential crony is not the place for a sui generis departure from those guidelines”

                Actually it makes perfect sense if, as in this case, his being a presidential crony was the original qualification for getting hauled up before Congress in the first place.

      3. The guidelines themselves recognize that they don’t (and couldn’t) “incorporate[]all of the factors that ought to be taken into consideration” and that accordingly it may be necessary to depart from them on the unique facts of particular cases. Moreover, they’re strictly advisory: while the judge has to consider them, a within-guidelines sentence doesn’t even carry a presumption of reasonableness. DOJ policy also authorizes a recommendation of non-guidelines sentences in appropriate cases.

        It’s almost as if you don’t know very much about federal criminal procedure.

        1. It’s almost like you aren’t reading the thread.

          I appreciate that the sentencing guidelines are advisory, and that they may not be exhaustive of all relevant considerations. The point I am making, to Kazinski, is that it makes no sense to refer back to the very nature of the crime to justify a lesser sentence for committing it.

          1. Well it’s not really a lesser sentence is it because it’s within the guidelines.

            But it certainly isn’t a novel idea to take the nature of the crime into consideration when considering the punishment. As Joe Biden said: “nobody should be in jail for a nonviolent crime.” But I don’t think he really meant it, Bernie Maddof’s crime was non-violent but I’ve never heard it asserted he didn’t deserve prison. On the other hand I’ve heard plenty of times that Martha Stewart should not have been sent to prison, no matter what the sentencing guidelines said, and I’m inclined to agree.

            1. I think Martha Stewart’s sentence was proper. But where I come down is that the biggest problem with sentencing is this notion that short sentences are a “slap on the wrist”. Jail and prison are very unpleasant- even short stays can have a significant effect as punishment and deterrence.

              There are people who are so dangerous that they just have to be incapacitated, but those are really the only people who should be getting super-long sentences. For most crimes, 1-3 years in a prison is going to be extremely effective as punishment; more than that is just cruel.

              1. Spending time in trial and having your life’s blood sucked dry by vampires bank account depleted by lawyers is often punishment enough without prison time.

              2. Try that again.

                Spending time in trial and having your life’s blood sucked dry by vampires bank account depleted by lawyers is often punishment enough without prison time.

                1. Some commentary systems allow a preview mode or an edit option that expires within a short time limit to avoid editing comments in response to a reply.
                  Reason should adopt one. It is a dream I have.

                  1. Don’t give up hope, Naaman. Many of us, whatever our political views, share your dream.

          2. Kazinski can write for himself but I don’t think that “non-monetary victimless” refers back to the very nature of the crime.

            Stone was convicted of five counts of lying to Congress, one count of witness tampering and one count of obstruction of a proceeding.

            Lying to Congress could be for financial gain, or part of a scheme to hurt some specific victim, or it could be for other purposes. Same with witness tampering and obstruction. One could have the opinion that this should be taken into account in deciding whether to be lenient.

    2. Kazinski wrote: “It also seems somewhat strange that the President seems to be the only person in the entire United States that is not allowed to have an opinion on Roger Stones sentencing.”

      That’s quite a straw man. Who is saying that the President is not allowed to have an opinion?

  5. “More than 2,000 former Justice Department employees”

    Who the media have very, very carefully refrained from investigating.

    The people who’ve looked at the list found about what you’d expect: A totally partisan list of Democrats and nominal “Republicans” who chose to donate primarily to Democratic candidates.

    But “2000 Democrats” doesn’t have quite the same impact.

    1. The people who’ve looked at the list found about what you’d expect: A totally partisan list of Democrats and nominal “Republicans” who chose to donate primarily to Democratic candidates.

      And people are saying that you’re a Trumpist hack who’s not above lying about what he’s actually read and so can be safely ignored when he makes statements like this.

    2. Someone investigated them or else how did you figure out it was a “totally partisan list of Democrats”? Or did you do the investigation independently?

      Anyway, what’s the point? They are former Justice Department employees. What did you expect, that they’d all be Republicans? Federal employees are entitled to their political views, don’t you think?

      You’re not going to believe this, but the Senators who voted against impeachment were mostly partisan Republicans who donate primarily to Republican candidates. The scandal!

      1. Yes, somebody at the Federalist society investigated them.

        I don’t think the Federalist society is going to lie about who they made their donations to, when it’s public records anybody can look at.

        I didn’t expect them to be all Republicans, but a letter like this would have more impact if they weren’t all Democrats.

        1. Predictably, the Federalist society “investigation” that you’re pointing to was “called off” before it was completed, was undertaken via “crowdsourcing” (which means we can’t evaluate its accuracy), and was presented in a highly cherry-picked and not data-driven way.

          You’re such a asshole, Brett. We should not have to constantly double-check every one of your assertions for their veracity.

          1. the Federalist society “investigation” . . . was undertaken via “crowdsourcing” (which means we can’t evaluate its accuracy)

            Wow. Please grace us with your wisdom on how it’s impossible to look at public records yourself to verify whether the donations were actually made. For bonus points, please do explain how your ability to look at the same public information yourself could possibly be affected by the distribution of labor across the body of people who looked them up (you did actually look at the link where this was all described and thus understand that’s what “crowdsourcing” means in this context, right?). I’ll wait.

          2. I was curious enough to read the ‘crowdsource’ twitter thread. I think you are too quick to dismiss what they did. For example, look for the posts (tweets?) by ‘Lee Prevost’.

            IIUC, he took the list of signers (there is a link to a spreadsheet with the names) and tried to match them to a donor list from the FEC (“matching algorithm used last name, an 85% match for first name, and a keywords list for the occupation to match to “lawyer/attorney” types.”). He found matches for roughly half of the signers, and reports that their donations were heavily in favor of Democratic causes (it would be nice to know how he decided to classify donations – it’s certainly possible to tell whether a donation to a congresscritter is D or R, but that seems like a lot of work).

            As a crosscheck, on the same thread ‘Shannon’ sorted the signer list by number of years at DOJ and looked at the top 50, and reports 58% D, 4% R, the balance mixed or unknown. She/he/it links to their findings so you can spot check.

            On the balance, it seems likely that the list was in fact heavily weighted towards donors to Democratic causes. It’s possible that for example the longer serving people just happen to all be fans of Team D, but it seems statistically pretty improbable.

        2. You know, if you’re going to attack someone’s credibility because of their political views, then “someone at the Federalist Society investigated it” carries just about the same amount of weight as “a bunch of Democrats signed the statement.” Why are Federalists any less biased than Democrats?

          1. You know what? I don’t typically ignore information just because the source doesn’t share my politics.

            In this case they looked at public records. Records you can easily look at. Go prove them wrong.

          2. More important here is Brett’s underlying assumption, and the implicit claim of the Federalist article:

            It’s obvious that those who signed were motivated by partisan bias against Trump, while Republicans who were given the opportunity but refused did so out of firm, non-partisan principle.

            Which is ridiculous. Under current circumstances no Republican who has any sort of career interest involving government, or who has any interaction with government, will sign the letter.

            So it is totally predictable that few Republicans would sign it, either due to loyalty or fear. The information tells us nothing.

        3. The Federalist is on online magazine which is not affiliated with the Federalist Society.

        4. So the media! hyperventilation is that non-partisan groups did not perform an inspection of public records that a partisan group did perform? Did it cross your mind that the reason “the media” didn’t investigate the donor histories of the 2,000 former federal employees because that isn’t newsworthy?

          It’s also silly for you to talk about “more impact”. You don’t care when actual Republicans–that is, elected Republicans–say things you disagree with politically. You’ll just no-true-Republican the criticism and move on. You’ve already begun, by discounting anybody who donates to Republicans from the 2,000 as a “nominal ‘Republican'”. If it’s not relevant to you, don’t pretend that it should be relevant to us.

          1. “Did it cross your mind that the reason “the media” didn’t investigate the donor histories of the 2,000 former federal employees because that isn’t newsworthy? ”

            It did not, because it, facially, IS newsworthy.

            1. No, “it did not” because you’re, facially, full of shit. The political activity of 2,000 former DOJ employees is not newsworthy in any calculation or perspective whatsoever. ”Newsworthy” doesn’t mean “so I can dismiss the whole things on the grounds of BIAS!”

            2. Facially, even!

              Brett, for most people their politics doesn’t define them.

            3. You did not expect them to be Republicans, but that they are not Republicans is “facially . . . newsworthy”? Make up your fucking mind.

        5. No, no, no, no, no. No. No.

          The Federalist has nothing to do with the Federalist Society. The Federalist Society is a networking group of conservative and libertarian lawyers. The Federalist is an online garbage publication by garbage people that hides its source of funding and lies in every piece.

        6. “I didn’t expect them to be all Republicans, but a letter like this would have more impact if they weren’t all Democrats.”

          You must’ve been very moved by the statement, then, since earlier you conceded that there were some “Republicans” who signed on. There were even some Republicans.

      2. They’re more than entitled to their political views and the expression thereof.

        But it needs clarifying that these are political views.

        1. What needs clarifying? The letter writers were obligated to recount each of their political biases in any letter they write? The newspaper has to tell you “the percentage of people who signed the letter but have also at some point donated to the Democratic party is X%?” Why do you think either “needs” to happen? Or else what?

          1. When the media proclaims that these letter signers worked for both Democrat and Republican administrations, that’s an implicit claim, or if you prefer, spin, that they are not partisan, and that their complaint is apolitical concern for “norms.”

            Obviously the fact that they worked for Democrat and Republican administrations does not, in reality, entail that the signatories include equal numbers of Repubicans and Democrats, or even any Republicans at all. And in practice, if we did an analysis, we’d find that there might be a small sprinkling of ancient Never Trump Republicans, and the rest are Lawfare types.

            So pointing out that the spin is spin is perfectly reasonable. And the demonstration that the spin is in the numbers. It’s Lawfare astroturf. The “worked in Democrat and Republican administrations” spin is just for rubes, who don’t know that right now in the middle of the Trump Terror, 90%-99% of DoJ lawyers are rabidly anti-Trump.

          2. This letter is what the media and other numbskulls run with to make claims like “Trump is the most corrupt President/administration of all time” and they are breaking all of the laws and getting away with it, etc.

  6. None of this explains why the post-Watergate norm of presidents keeping distance from prosecutions of friends/foes isn’t right and important.

    1. Welcome to the 21st century, where populists all over the world smash unwritten constitutional norms with abandon.

      1. But the point is that the Constitution says exactly the opposite. Its not a constitutional norm, and the ‘take care’ clause actually lays it out as a presidential duty to ensure the law is not abused. It maybe a practical norm over the last 30 or 40 years, but it certainly is not a constitutional norm.

        1. And intervening to recommend lighter sentences for political cronies fits in with your idea of the presidential duty to ensure the law is not abused?

          1. When people in Trump’s orbit are so obviously being abused by deranged Trump hating prosecutors then it sure is.

            1. Should I assume you are pulling these accusations out of thin air, or do you have any actual proof? Since it’s “so obvious” and all.

        2. ” the ‘take care’ clause actually lays it out as a presidential duty to ensure the law is not abused.”

          If the President finds that the sentence was too severe, the Constitution provides him a remedy, and it’s not “tell the AG to go easy on my friend”.

    2. The article does explain why the idea of keeping distance is right and important. See the section of the paragraph that starts “Unwise? Yes…”

      Prof Blackman is not saying that Trumps actions are wise or morally right. He is merely rebutting some over-the-top allegations that what Trump did here was “unconstitutional”.

      1. So what mechanisms are there to preserve “right and important” norms, if breaking them is merely “unwise”? If too-strong reactions are bad, so are too-mild ones, which Blackman’s certainly is.

        1. Elections.

          1. anorlunda beat me to it.

            Social shaming is also a mechanism for preserving norms – but that’s been breaking down for a long time and on both sides of the aisle.

            1. And rationalization is a way to circumvent the shaming function.

              And spurious arguments like the OP are a great fuel for rationalization efforts.

              1. In fairness, Prof. Blackman does make clear that he is only defending the President’s actions on a legal and constitutional basis, and that the actions were “unwise.” I guess that’s something. Not sure what.

              2. People try to rationalize elections too. The 2016 election being a great example.

                1. Your telepathy seems on the fritz.

          2. Except a President faces a maximum of one election, and a second-term President faces none.

      2. Prof Blackman is not saying that Trumps actions are wise or morally right.

        No, he’s not, but some commenters are.

        1. Also his argument easily allows the inference. Otherwise why make such an anodyne argument?

    3. That post-Watergate norm depends on the prosecutors not simply acting as partisans of the opposing party.

      1. Mueller SC prosecutors anyone?

      2. That post-Watergate norm depends on the prosecutors not simply acting as partisans of the opposing party.

        I don’t think you have a hope of understanding people who disagree with you, so long as you’re committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

        1. Brett’s got a major hard-on for conspiracies. He sees them everywhere.

    4. The norm is nothing but political expediency.

      What’s more right and important is:

      1. That justice be administered equally, and
      2. That the electorate exercises control over the executive branch and the runaway permanent administrative state is destroyed.

      1. So I take it you’re against the clear special pleading in this case.

      2. Because Stone going away for 7-9 for what he did is equal administration of the law. Last I checked, Clinton never stood trial for obstruction of justice and tampering with evidence. Unless you’re actually dumb enough to believe that these personal emails were never supposed to be saved, someone just happened to forget deleting them, the “personal” designation by Clinton is in fact accurate, and the BleachBit episode, which happened to occur 3 weeks after Clinton received a subpoena for those records, is mere human error.

        https://www.factcheck.org/2016/09/the-fbi-files-on-clintons-emails/

        1. Yeah…this was about sentencing of someone found guilty, not Internet convictions via right-wing wankery and a marginally on-topic factcheck.org post.

    5. As a convention i would agree, but as a legal requirement it just doesn’t exist.

      1. Which is an extremely weak argument. Court packing is legal as well. Doesn’t mean that’s a complete defense of it. Which is what seems to be the slight of hand occurring in the OP.

        1. Why disparage enlargement of the Court as “packing?” Should all of those who increased or decreased the number of Supreme Court justices throughout American history be disparaged for that conduct?

          1. I actually learned that was the only thing that was defined as packing.

            All this other Internet BS about putting people on the court via the usual methods as packing is where I think the mistake is being made.

            1. There is nothing wrong with enlargement of the Court. It has occurred — as has diminution of the Court’s membership — without capsizing our nation. The next round of enlargement likely would be for the better. As our nation grows, so should the Court (and the House of Representatives).

              That the enlargements I propose would favor the liberal-libertarian mainstream, at the expense of conservatives, is part of the benefit.

              1. The problem being that the enlargements that would follow would not is the main argument against you.

          2. “Why disparage enlargement of the Court as “packing?”” — not all enlargement is “packing”, but enlargement with Justices of only one ideology is.

            1. Relying on the people doing the packing to make mistakes as to the actual ideology of the judges being added seems foolhardy.

  7. As so often, I find myself wondering: Of all the issues you could write about, why on earth pick this one? I mean, the general point you’re making is almost certainly right, but that doesn’t explain why you’d spend time and energy making it.

    1. “The Washington Post invited me to write an op-ed”

  8. “If we were drafting a Constitution from scratch, it may make sense to divide the executive power up.”

    We kind of are. If the public thinks that the President should not interject in sentencing decisions “involving his friends”, that such behavior is constitutionally permissible is of no moment as to whether it is innocent. Voters can punish the President, demand that their Senators and Representatives investigate and apply pressure, etc. The people’s feedback power over the Executive Branch is not limited to according to Hoyle constitutional violations.

  9. One of those “Duh” moments.

  10. Note the words used throughout the article:

    “In another letter, Jefferson URGED Hay…”

    If, in fact, Jefferson believed in the “unitary executive”, Jefferson would have “ORDERED Hay….”

    1. Not at all. It’s quite common for executives who know how to delegate to merely impress on their subordinates what they want, without making it an order. Because there might be countervailing details, and you’ve got other things to do.

      If you’re going to make your subordinates’ decisions for them, what’s the point in having subordinates?

    2. It’s strange to talk about “believing in” a proposition on the level of “water is wet.”

      1. The question of whether or not “water is wet” is actually pretty complicated, and depends on what definition of wet you are using. Pedantic enough for you? I’ll go away now.

    3. I usually say “please do x” or “can you do Y” when I am telling people in my office to do things. They really don’t have a choice, they are “orders” but dressed up in polite language.

      Who uses “I order you”?

      1. But weren’t we told that when Trump said he hoped Comey would go easy on Flynn, he wasn’t ordering Comey to do anything?

        1. Good question, Leo.

      2. Yes, I still remember, very early in my career, when somebody above me in the food chain asked if I had time to do something. I was right in the middle of a project, and offered to get on it as soon as I hit a reasonable stopping point.

        About a half hour later the CEO, (It was a very small company.) dropped by to explain to me that it really hadn’t been a question.

        1. Presumably, at some point, they hired managers who know how to communicate and manage, and they stopped having that sort of problem.

  11. Maybe so but it is unethical as can be. I can imagine the shrieks and howls back when Clinton was accused of acting unethically and improper and how that drove impeachment but yet those same people are now silent as Trump tramples on established norms, ethics, and the constitution in other ways. Hypocrisy, thy name is Republican.

    1. If you were trying to maintain an electoral coalition for stale intolerance and gullible ignorance in modern America, you’d be desperate enough to try anything, too.

  12. Ok we get it. Technically the President can order the AG to investigate and prosecute his political enemies, no matter how factually innocent, and can order him to leave alone his political allies, no matter how factually guilty. I don’t know where you’re going with this though. Or why you have to reach back 200 years to find an example.

    1. Well, the technical point IS kind of important where, as here, the actual decision the President urged was perfectly reasonable. And when people are freaking out about the President saying he’s legally entitled to do something, it’s worth pointing out that he’s right.

      1. It’s a long way from “constitutionally permitted” to “perfectly reasonable.”

    2. “Technically the President can order the AG to investigate and prosecute his political enemies, no matter how factually innocent”

      Is this your defense of President Obama?

      Remember, the collusion delusion was a lie and a hoax. The perjury by Comey, McCabe et al is real.

      1. It’s perjury now?

        You’re getting crazier.

    3. The point is reaching back to a time when people obviously knew what was intended by the Founders because they WERE the Founders. If it was well understood then that the President had such authority, then it’s not just grasping to create new powers now.

      1. They didn’t “obviously know” anything. There was no general agreement on such things even back then. Read about the debates in the House of Reps about the Jay treaty. A bunch of them were actual delegates to the constitutional convention, and even they couldn’t agree on the reach or meaning of the Senate’s power to approve treaties. The whole argument of “…they did x in 1794 or 1803 so that shows what the founders intended” is nonsense.

    4. “Technically the President can order the AG to investigate and prosecute his political enemies, no matter how factually innocent”

      That WOULD be an impeachable offense. The President has a duty to take care the laws are faithfully executed. Ordering a prosecution of someone when the facts don’t support it goes over the line. Asking for an investigation when aware of some questionable conduct does not.

      1. “asking for an investigation when aware of some questionable conduct”

        Well yes that is going over the line. Particularly with this President, where “questionable” means “anything done by someone who has criticized me”. At most, he should just notify Justice and let them decide whether an investigation is warranted.

    5. I think the underlying argument here goes beyond “the President can order the AG to do so-and-so”, reaching “the President can personally do so-and-so”, and that legislation purporting to vest executive power in his subordinates actually vests it in him.
      And so, where 28 USC §518(b) says

      When the Attorney General considers it in the interests of the United States, he may personally conduct and argue any case in a court of the United States in which the United States is interested

      it really means the President can do that. With luck he may hear of this as-yet unexplored corner of his authority.

      1. Having Trump argue a Supreme Court case would be great!!

        1. Ha! He would probably ask the Justices to “sign a bill”. And take the names of any Justices who pose skeptical questions.

          Comparing this guy to the last two Democratic Presidents, men who taught in the most prestigious law schools in their respective states, and not only that, the most prestigious law school course (Con Law). . . a fiction writer could not have posited a more 180-degree contrast.

          1. I didn’t say he’d be good. Just that the experience would be great.

            He is not a lawyer so I would never compare him to an actual lawyer, even poor ones like Obama or Clinton.

        2. In what way, you bigoted malcontent, would having Trump argue a Supreme Court case be great?

          1. Well, it would be massively entertaining.

            1. Exactly.

              1. As would be having criminal cases decided by roulette wheel. But only an anti-social dope would say that would be great.

  13. Remarkable, but no one seems yet to have mentioned the Take Care Clause in the Constitution. In this case, the president supposes his friend and henchman is about to get a more severe sentence than the president wants the friend to get. Arguably, intervening on behalf of a lighter sentence shows less-than-appropriate diligence about taking care that the laws be faithfully executed. To me, that seems to provide at least some constitutional basis for demanding presidential constraint in this case, or in similar cases.

    1. Tell you what Stephen. Let’s give Stone the same sentence we gave to the director of security for the Senate Intelligence Committee, who was convicted of lying to the FBI about his contact with reporters, and his passing of privileged information onto to them, from his Senate intelligence meetings.

      That work for you?

      1. I don’t know if it “works for him,” but I do know it has absolutely nothing to do with what he wrote.

    2. Alas everyone knows that Trump is constitutionally incapable of objectivity towards his allies and enemies.
      🙂

      1. So is pretty much everyone.

        Jesus would lose in the primaries.

  14. Is there any such thing as “obstruction of justice” any more? Should Nixon in-resign ?

  15. The fledgling clinger crusader vs. the hoary old conservative, grappling over the remnants of the “unitary executive” carcass after Barr, perhaps inadvertently, ripped it apart.

    Perhaps when they tire of this they can move to exposing originalism as another trifling conservative confection.

    Great entertainment but, over the long term, not much of consequence.

    That conclusory “tweets are not presidential directives” assertion will stand until the climbing clinger needs to contend the opposite to provide sweet succor to Trump.

  16. I see no problem with Blackman’s op-ed. Being a whore for the president should allow for Josh to spread his legs in a wide variety of media. Including op-eds in “liberal” newpapers like WaPo…I see no reason why he should be limited to Fox News, Washington Times, etc..

    1. This is sexist and offensive, especially the line about “spread his legs”.

      1. I think you are confused. Can you explain (with you focusing on a male prostitute spreading his (metaphorical) legs vs a female prostitute doing the same act) why one is considered sexist? I think that word may mean something different than you think it means.

        As to “offensive,” I’ll grant you that a metaphor about whoring easily could fit into that category. (Or is it that you are arguing that political and intellectual whores are so awful that making my comparison is actually being unfair to sex-trade male and female prostitutes and unfairly compares them to the far-worse whores I’m clearly referring to? In which case, I’d probably also agree with you about that point.)

  17. I’m genuinely confused by people who have at least a modicum of legal knowledge, yet they seem to deny the most basic aspects of the structure of the Constitution.

    The Constitution set up a federal government whose powers were expressly limited to specific, enumerated powers. Those powers are divided into three general categories.

    The legislative power is vested in the Congress. Article I Section 1.
    The executive power is vested in the President. Article II Section 1.
    The judicial power is vested in the courts. Article III Section 1.

    That’s it. There’s no other body or person in whom power is vested.

    One may acknowledge a caveat that there’s not a perfectly neat separation into legislative, executive, and judicial. For example, the President has a quasi-legislative veto power.

    One could also certainly object that the enumerated powers are not defined clearly enough. Or, that the federal government has far exceeded those powers beyond any reasonable interpretation, and so perhaps the Constitution is or should be irrelevant, or perhaps its validity is subject to question at this point.

    But if you accept the Constitutional structure, it’s plain that no power of the federal government can possibly be vested anywhere other than Congress, the President, or the courts.

    The idea of an independent bureaucratic state is an anathema to the Constitution and basic principles of self-governance.

    1. People call agencies ‘Article I’ ‘Article II’ or ‘Article III’ agencies depending on the authority.

      Congress gets to set up much of the judiciary, it’s there in Article III.

      Being confused that everyone else doesn’t realize these windmills are giants doesn’t get you anywhere you want to go.

      Because everyone else, excepting a vanishingly small few, disagrees with your Constitutional take.

      1. I’m honestly trying to make heads or tails of your comment. I’m not a legal scholar so bear with me.

        Can you describe precisely the supposed disagreement between me an “everyone else, excepting a vanishingly small few”? Because I don’t see it. Turning to the esteemed legal authority Wikipedia on the unitary executive, it says that the “general principle is widely accepted.” It goes on to explain some “disagreement about the strength and scope of the doctrine” yet there’s nothing referenced on the entire spectrum of that disagreement that I find objectionable. The real disagreement it seems is also referenced: “Still others agree that the Constitution requires a unitary executive, but believe this to be harmful, and propose its abolition by constitutional amendment.”

        1. Very few people think the FDA is unconstitutional.

        2. I’m not a legal scholar so bear with me

          Were you not the commenter known as Millennial Lawyer?

          1. I’m a lawyer, but I’m not an academic nor does my practice involve Constitutional law.

            I don’t think the FDA itself is unconstitutional. I’m sure there have been some unconstitutional aspects of actions they have taken, particularly under an original meaning.

            1. “ The idea of an independent bureaucratic state is an anathema to the Constitution and basic principles of self-governance.”

              How does this except the FDA?

              1. To the extent that the FDA wielded independent power, not just politically or as a norm, but as legal authority, it would be a constitutional anathema.

                1. So all rulemakings under the ACA.

                  Administrative Law is an entire and well accepted accepted branch of law.

                  Your understanding of the Constitution is not unique, but certainly idiosyncratic.

                    1. Your understanding of the Constitution is not unique, but certainly idiosyncratic.

    2. That’s it. There’s no other body or person in whom power is vested.

      Well, that’s it if you ignore the first three words in the Constitution. And the power mentioned in those three words is superior to all the others, and the final arbiter of what the others mean.

      1. Ha! Well, I won’t disagree with you there. The preamble is the best part of the document.

        And how does this inform the issue at hand?

        That is, have the People established power to reside in a permanent bureaucratic mass, or in the single most politically accountable person on the planet?

        Here’s what a founder said at the ratifying convention:

        “[T]he executive authority is one. By this means we obtain very important advantages. We may discover from history, from reason, and from experience, the security which this furnishes. The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. We secure vigor. We well know what numerous executives are. We know there is neither vigor, decision, nor responsibility, in them. Add to all this, that officer is placed high, and is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”

    3. Well… it gets interesting.

      Start with the 10th Amendment…

      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.””

      Then consider some quasi-government agencies like the Federal Reserve….

      1. Yes, but I think that misses my main point. Setting aside the question of what the proper scope of the federal government’s enumerated powers are, those powers, whatever they may be, must be vested in one of the three authorities, and not outside of any of them.

  18. The point here is that a president can exercise constitutionally valid powers in a corrupt manner. The only check on that is impeachment and removal from office, or defeat at the next election.

    1. Those seem to be the only checks that exist, regardless of whether the actions are constitutionally valid or not.

  19. Prof. Blackman apparently likes either Trump or notoriety. While “the executive power” is vested in a president of the United States, as Charles Fried more recently and Robert Jackson in the Steel Seizure Cases pointed out, the “executive power” is not unlimited. The president is “commander-in-chief of the Army and Navy, not of the country, its industries, and its inhabitants”. Faithful execution of the laws is not capricious and whimsical indulgence of the president’s fancies. And, even if Blackman is literally correct in the president’s authority over the AG and his minions, norms have arisen and created an ethos, particularly post-Watergate, such that past presidents did not stick their beaks into individual investigations and prosecutions. Who has forgotten the noise and outrage when Obama opined that he believed Hillary Clinton’s email management not to have been wicked and corrupt? What is more “American” than the concept that America is a government of “laws and not men?” And which concept is more foreign, yea, incomprehensible, to Donald Trump, whose credo is “I’m the only one that (sic) matters?” Perhaps the least American of conceits.

    1. (a) norms have arisen

      (b) Who has forgotten the noise and outrage when Obama opined that he believed Hillary Clinton’s email management not to have been wicked and corrupt?

      The noise and outrage was, of course, entirely one sided.

      You need to appreciate that once a norm has been breached without general disapprobation, it’s not a norm any more. It’s a retired norm.

      It’s perfectly reasonabe to express noise and outrage at the breaching of a norm, and then to be totally relaxed about the “breaching” of that same, now retired, norm.

      The other way round, not so much.

      1. “(b) Who has forgotten the noise and outrage when Obama opined that he believed Hillary Clinton’s email management not to have been wicked and corrupt?

        The noise and outrage was, of course, entirely one sided.”

        The noise and outrage was equally one-sided in objecting to the common use of private email servers in the W administration, which is why by the time Hillary showed up in an official government role, the use of private email servers was officially No Big Deal, except to people looking for a reason to hate on Hillary.
        That’s why there’s absolutely no fuss whatsoever that there’s still private email server usage in the current administration.

  20. Shorter Blackman: “Here am I, President Bush, PICK ME!!!!!!!”

    1. Yup. I think we all got that this was really Josh’s main point in this article . . . and in his prior ones.

      Hey, not everyone can get a ton of plum speaking engagements on Fox News evening shows, and you gotta get the attention of the prez somehow. Personally, I think the idea of penning an op-ed is almost pointless for a president who abhors the concept of reading anything longer than a tweet. But maybe someone at the White House with the ability to read will see his op-ed and can turn it into a 3-sentence summary that will fit into Trump’s intellectual wheelhouse. Entire political and/or judicial careers have been made out of weaker tea before, so who knows? . . .

  21. In short, who’s the client? The President can’t define the scope of representation, so perhaps there’s no intuitive reason to think that he or she should be able to make litigation decisions. Estoppel doesn’t run against the government, so there’s not a single, coherent moral entity that equity could examine, and who therefore should control things.

    It’s an omnibus authority, not a private car. The dispatcher can hire and fire the driver, and has a legitimate expectation of authority, but he can’t send it on detours and frolics without being accountable to the real clients. Call it the Louis DePalma theory of representation.

    1. You are confused. The client is the United States of America, in whose name all criminal prosecutions are brought.

      The Chief Executive of the US is the President, and hence he, or his delegates, make the decision as to the litigation decisions.

      The same thing happens when you have a private corporation — the officers, and ultimately the CEO, are the ones who decide what the company will do legally, including what litigation positions to take. That is why courts require an officer with authority to attend settlement conferences. Someone has to decide for the company.

      If the shareholders don’t like the decisions, they can fire the CEO. And the voters can vote out the President.

      1. The United States of America is a country. A country is represented in matters of state, and regulated by its government. The President is both the head of state and the head of the executive (implementation) branch of government. In the former, he has no delegated authority to control litigation, in the latter, he has the authority to faithfully execute the laws — but he can’t just pick a few of them, and he can’t ultimately decide what they mean.

        Unlike prosecutors in New York and perhaps one or two other states, though, lawsuits and prosecutions aren’t taken up in the name of the people — it’s the government, and the whole government at that. And so the Attorney General is bound to the laws as passed by Congress and interpreted by the Supreme Court, while making any necessary good-faith arguments for the change in existing law. His or her ability to do that and general philosophical outlook is fair game for the head of the executive. Particular commands issued in an attempt to personally favor friends of the President have no legitimate authority, just as “pick up my drycleaning” has no authority when issued to a corporate subordinate. They simply hold no brief to do such things.

  22. Here are the original sections that were ultimately cut

    By whom ? I deduce from the passive voice that it was the WP doing the cutting.

    He who pays the piper, eh ?

  23. This editorial and the beliefs behind it are why we head toward authoritarianism

    No, no he doesn’t make these decisions
    He appoints people vetted by the Senate to make these decisions

    he is not a king

    He is not even a CEO

    hell, a CEO does not just fire any person he wants, there is a whole Personnel department involved

    Why is it right wingers and libertarian insist we keep making the same mistakes over and over again?

    This is a history fail

    1. Oh, and if he profoundly disagrees with the decisions made by the people below him , he can fire them.
      And yes the pardon power allows him to address bad decisions

      OR help his cronies and corrupt the gov’t

      you know, like you do

  24. “The Constitution does not place a wall between the president and the Justice Department”

    True. The reason previous Presidents didn’t intervene in prosecutions of associates is that they cared if they looked corrupt or not. This one is incapable of shame.

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