The Volokh Conspiracy

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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 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.