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

Sunstein's two proposals would conflict with the Morrison v. Olson majority opinion


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

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

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

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

Here is the key passage from Morrison:

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

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

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

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

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

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

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

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

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

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

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

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

A constitutional amendment would be needed to effect this change.

NEXT: What Should We Do About Section 230?

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  1. Sucks the Constitution requires we stand by and let the President screw up our electoral system by turning the power of our government to purely partisan aims.
    but that’s s the system we have! Amazingly we’ve never only uncovered this flaw just now.

    Ah well, all regrets and hindsight! The key is that we keep to this specific interpretation that lets Trump do all these things as we shake our heads and lament to these critics that our hands are tied.

    Such is our legal obligation, if not our moral or practical one.

    1. You don’t have to stand by, you can vote against him.

      I’m shocked how many people are finding out just now that the president, as chief executive, controls the DOJ.

      1. Well, before it was fine. It was Obama. Obviously.

      2. No he doesn’t
        Clinton would have loved to fire Freeh. Why didn’t he? Explain.
        Why was the FBI Director term set at ten years? Explain.

        1. Because no one wanted the specter of another J E Hoover with files of deadly political dynamite gathered over decades. Once Hoover was gone, a remedy was put in place.

          1. ?
            That makes no sense.

            Hoover had been dead for years when that was put into place.

            Answer my question: why didn’t Clinton feel like he could just fire Freeh?

            1. You’re starting from a false premise. Clinton could have fired Freeh anytime he wanted to – as long as he was willing to take the political flak for doing so. Note that Bush had no trouble firing Freeh within 5 months of taking office. Yes, technically it was announced as a “resignation” but he was fired. Clinton could have done the same.

            2. Because he was already in deep enough shit already?

      3. I’m not criticizing my own options, I’m criticizing this weak-ass ‘it’s legal but I’m not saying it’s okay!’ thing Prof. Blackman’s been off on.

        Many here are already too far gone hopped up on raging against imaginary Obama corruption that even if true wouldn’t touch what Trump’s doing. But posts like the OP encourage some, like you, to think that wielding the DoJ like a partisan club is legal, and thus somehow legitimate.

        1. But some things really are legal but not OK!

        2. What is Trump doing that is so bad? Is he using the DOJ/FBI to spy on his political opponents because that would be pretty bad. Oh wait that was Obama.

          1. Oh wait that wasn’t Obama. Or you don’t know what spying is.

            As to what Trump’s been doing wrong, there’s loads of examples of using governmental power to directly affect his reelection.

            Ukraine strongarming.
            DoJ’s special channel of dirt on Biden.
            Firing his Intel guy because he was telling people about 2020 election interference.
            Making the DoJ use an easier standard for people who have been convicted of crimes in helping him in the last election.
            Firing people who testified about the true things they saw regarding the above acts.

        3. Sacastro – Quit pretenting that there was no Obama Corruption. It was extremely prevalent in the Obama DOJ.
          fast furious
          black panther
          clinton email
          clinton foundation
          IRS targeting,
          harrassment/proscecution of video cause the bengazi deaths.

          Obama’s two wingmen knew and agreed with their marching orders

          1. Your list says a lot about your craziness than about Obama.

            I do like finishing on Benghazi. Play the old hits!!

          2. These people live in a different reality than us Normals.

    2. Dude! It’s been like that from the beginning! Did you just notice now?

      TDS bud, TDS. Sucks to be you, slow out the gate and all that.

      1. No, it hasn’t. There have been rules about DoJ independence since Nixon. Because of Nixon. Learn your history.

    3. Turning the power of the federal government to partisan aims is what the Department of JustUs has done. All President Trump is doing is pushing back against that.

      But even if a President were doing such a thing, the remedies are twofold. The first is election of a different President at the conclusion of a four-year term. The second is impeachment. The idea of splintering the authority of the executive branch is nothing more than a proposal to make matters worse.

      1. Department of JustUs

        Self-refuting comment right here.

        1. Truth in Advertising would require changing the name to the Department of Injustice.

    4. President screw up our electoral system

      Are you implying Trump didn’t win the election?

      to purely partisan aims.

      by partisan you mean ‘stuff I don’t like’ got it.

      1. There’s another election going on right now, even!

        1. How will using “influence” in a sentencing RECOMMENDATION in a minor case “screw up our electoral system”?

          1. Stone is in trouble for his work interfering in the last election. You don’t think making his sentence easier sends a pretty broad-based message?

            1. How did Stone interfere in the election?

    5. Liberals didn’t seem to have a problem when it was Obama doing it. But now your ox is getting gored….

      1. Obama didn’t do anything like this.

        1. Oh please. Pen and phone? DACA? Spying on the Press?

          You don’t like what POTUS Trump is doing? Fine. Everyone is entitled to their opinion. There is a process here we can use to address your concerns, Sarcastr0. We’ll settle this the Old-fashioned American way….at the ballot box this November 3rd.

          1. Incomparable to what Trump is doing. You are illustrating your own partisan obliteration of perspective

            A quote, a notice and commented rule, and tin foil BS about procedures set up by a Republican Administration are not like Trump openly letting his cronies off the hook.

            1. What is Trump “doing” exactly.

              1. In a related question: What’s the view like from inside your ass, Bob?

          2. Oh stop with “pen and phone.” It’s tedious and silly.

            Obama notes that he can issue executive orders, or call people to try to get things done, and somehow, in Fox/Limbaugh world, that’s a big scandal.

            What next? Benghazi?

          3. That’s only a viable option in a country in which the political minority can’t cancel the wishes of the majority at the ballot box.

        2. Obama didnt need to anything –

          Neither of his wingman prosecuted any of the corruption in his administration.

        3. Obama publicly weighed in on Clinton’s investigation.

            1. How the hell do you not know this?

              From IBD:

              “I guarantee,” President Obama said, “no political influence” investigating Hillary Clinton’s classified email scandal. He then added that national security wasn’t endangered. In other words, innocent if proven guilty.

              In his appearance on Fox News Sunday with Chris Wallace, President Obama told Americans not to worry, because “I guarantee that there is no political influence in any investigation conducted by the Justice Department, or the FBI, not just in this case, but in any case. … Guaranteed. Full stop.” [….]

              So when President Obama went on to double down on his claim last year that “I can tell that you this is not a situation in which America’s national security was endangered,” he was doing, as president, exactly what he was promising not to do — interfering.

              In fact, he was declaring her innocent before she has been proven guilty or not guilty.

              The president assured Fox viewers that “she has not jeopardized America’s national security” despite her “carelessness, in terms of managing emails, that she has owned, and she recognizes.”

              Obama urged to “keep this in perspective. This is somebody who has served her country for four years as secretary of state, and did an outstanding job. And no one has suggested that in some ways, as a consequence of how she’s handled emails, that that detracted from her excellent ability to carry out her duties.”

              1. So he said the investigation was independent and then stated the conclusion the investigation had reached.

                That’s…not exactly weighing in chief.

                1. You’re missing the timeline. The argument is that he stated this conclusion before the investigation reached it.

                  But people are conflating two different things: whether she was guilty of a crime, which he did not weigh in on, vs. whether her actions had harmed the country, which he did.

                  1. Ah. Fair enough DMN. I did screw that up. I need to phone post less.

    6. If only there was some profession of individuals, trained in the art of rhetoric and advocacy, that could construct legal arguments in support of their preferred position.

      I notice here Blackman uses precedent to support to his argument. While in a previous post, he highlights his recent article that tells lower court judges how to side-step precedent. He has truly mastered the force.

    7. ‘Amazingly we’ve never only uncovered this flaw just now.’

      Seems to me that it is only after the election of this president that some people have chosen to see it. I say after the election of this president… some folks have been working tirelessly to kneecap him long before he was elected.

      As Cass Sunstein says in this article: “creative legislators ought to be able to thread the constitutional needle…”

      Seems to me that this process has been an on going one, particularly with the use of the Commerce Clause to eviscerate all manner of individual rights… but hey the precedence you see today to harm your political enemies will eventually come back to cripple you.

      1. The government is bad, therefore all further bad uses of the government are okay.

        The nihilism of the intellectual segment of the modern GOP.

    8. Read the Myers opinion, Sarcastro. The concerns about excessive Presidential control over executive branch personnel go all the way back to 1789.

      The OP is right about the constitutional law here. Many states do it differently and make the AG more independent. That may be a very good idea but would require a constitutional amendment.

      1. Yeah, my post noted what the law said. It’s whole point was how weak keeping to merely formal legal analysis is.

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

    Of course, if something conflicts with Scalia’s dissent . . . .

  3. On a related note, there was a possibility of having the AG be separately elected by the population. This is done in a number of states (but not at the federal level).

    It would obviously require a constitutional amendment (And might also need a vice-AG election), but it could potentially diffuse executive power away from the president

    The AG (and DOJ) is an interesting role. The DOJ was only really fully incorporated in the late 1880s. Before that, the US Marshals were under the authority of the courts. The “old” AG role really has been taken over by the Solicitor General. The current DOJ really exists in this area between the Judicial Branch and Executive branch.

    It “might” be possible to carve out a separate DOJ branch under the Judiciary branch.

    1. I’ve wondered a few times how to go about eliminating the office of President entirely. What is there were no executive? Suppose Congress simply hired managers for all the agencies it creates — DoJ, military, Interior, DHS, etc etc etc?

      I think the lack of Presidential elections would be good especially for putting the focus back on Congress. Naturally some hired agency heads would be glory hounds, but I think most would be weeded out by Congress critters not wanting anyone they elected from stealing their limelight. One of the interesting subplots of Foundation was the idea that a strong emperor precludes strong generals, and a weak emperor invites strong generals competing to replace him.

      I suppose there might be a problem with J. Edgar Hoovers blackmailing Congress, but we get that anyway; I don’t think it would be any worse.

      I also like the idea of Congress bearing some more responsibility, instead of just wailing about the President doing something they don’t like.

      Maybe limit all Congressionally-hired agency heads to 3 years tops, followed by never having any more government jobs.

      As for which agencies would need Congressional hiring and which would be hired by agency heads, that’s easy — when Congress creates a new bureaucracy, they designate it as part of a top-level agency, or they make it a new top-level agency.

      1. With the right set of constitutional amendments, you could do all that. It’s worth noting, though, that you would be replicating som of the structure that was in place under the Articles of Confederation. That didn’t work out so well, either.

        1. I think the AoC worked a lot better than the federalists wanted, and they did everything they could to make it look bad. The winners write the histories, after all..

          Not that the AoC were perfect, but the follow-on sure isn’t perfect either, and has been corrupted to hell and back by power-mad government judges defining the same government’s own limits, which is a sure recipe for disaster.

          1. The Articles of Confederation were inherently flawed, because the Federal Government had no power of direct taxation. For every penny, it depended on the state governments. It was a “national” level equivalent of the current United Nations. And the current UN has no real power. The Articles, if kept, would’ve ended up in the states going their various ways.

            1. You could imagine an alternate history where the Convention, instead of completely ditching the Articles, had done what they were sent there to do, and just came up with some amendments to fix the known problems.

              The articles produced too weak of a central government, but the Constitution arguably over-shot in the opposite direction. Something midway between might have worked out better.

              1. I respectfully disagree, the pre-Civil War constitution did not create to strong of a central government.

                1. Well, yes and no. It laid the groundwork for it. Which is why the Civil war even happened. Under a modified Articles of Confederation the South would probably have been permitted to go their way.

                  1. The 17th Amendment has created quite a problem with the form of Republican government initially designed and placed in the Constitution. Basically Senators no longer represent their State as they are now elected by majority vote instead of State legislature.

                    1. ?? Senators represent their state pretty hard.

                    2. No, the job of the Senators was originally to represent the state government within the federal government. This was a countervailing force against the tendency to centralize power. The Representatives represented the state’s people.

                    3. I don’t buy the incentive to decentralize would be greater without popular election of Senators.

                      What I do buy is it’d make our current minority rule problem even worse.
                      What I also buy is that the problem the 17th combated – the corruption of the statehouse when given the opportunity to trade in federal power – would return in spades.

                      The 17th repeal as panacea folks are just searching for the one weird trick to fix all their perceived problems.

      2. “What if there were simply different agencies”….

        The interagency fights would be legendary without a unitary executive on top. Even parliamentary systems have an executive of some sort. Without “someone” in charge…it would be a mess.

        Congress could take more authority. But the lack of some sort of head of the executive branch…be it a President, prime minister, Monarch, whatever…would end poorly.

        An AG who answers to, but can’t be removed by the President is one thing. No president period, is something else entirely.

        1. As a practical matter, doesn’t “can’t be removed by” preclude “answers to”? Why does he care what the President says if the President can’t fire him?

      3. The function of the President is to represent the states in international affairs.

    2. Is not the equivalent of the AG under the judiciary in some countries? That may be(?) a feature of civil law, though I don’t see why that would matter.

  4. I am NAL-confused. Your excerpt from the Morrison majority opinion doesn’t AFAICT support the assertion that for cause (rather than at will) AG removal would impermissibly burden Presidents’ AG oversight responsibility. If anything (by analogy with statements in the excerpt concerning independent counsel oversight), it *appears* to support the opposite. What did I miss (or misread)?

  5. Andrew Johnson redux. Good grief, some people are soooo ignorant of history.

  6. Let us suppose there is not an Attorney General, nor any designee as Acting Attorney General. Let us suppose, for example, that in the Saturday Night Massacre of 1973, after the Attorney General Richardson, and the Deputy Attorney General Ruckelshaus resigned, Solicitor General Bork had also resigned. (Bork of course had considered resigning, but feared for the DOJ as an organization with no one in charge). In that hypothetical, could Nixon, as Chief Executive, have acted with the implicit powers of Attorney General? Or could he have named his personal secretary, Rosemary Woods, as acting attorney general, even without sending her nomination to the Senate, and she could have done his bidding, until the House impeached him and the senate removed him?
    On the face, can’t the President simply act as his own attorney general, in the absence of a designee? I the State of Texas, we have plural executive, with an elected Attorney General, but under the US system, ultimately the constraints the Congress has are the power of Appropriation, and the power of Impeachment.
    And we’re in the situation we are in because in recent decades the Congress hasn’t wanted to use the full leverage of the power of Appropriation.

  7. “[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.”

    Founder James Wilson, Pennsylvania ratifying Convention, 1787

    1. Ah, James Wilson, the most under-appreciated founder, and a personal favorite. But M L, I doubt you would like him so much if you had read enough of his record to take him whole. Among the founders, Wilson was the leading exponent of unconstrained sovereign power, and of its continuous control of government.

      See that reference to impeachment at the end of your quote? That is characteristic of Wilson’s systematic emphasis, and his abiding respect for putting sovereign power first. Had it been up to James Wilson, Trump would have been impeached far sooner, and booted from office.

      1. Could be; how so? It’s a complete mystery what you mean by “sovereign power.”

        Regardless, his point here is well taken. The only way to ensure that the executive power is politically accountable is to ensure that it is unitary and vested in the President. This has been by no means a sure-fire way of keeping the executive power limited to its proper scope, but any digression from it would only make things worse.

  8. Why are you citing Morrison v. Olson as opposed to Myers v. United States (1925). As I read Morrison, the reason Myers does not apply is because the independent counsel is an inferior officer, controlled by the Attorney General, and so a “good cause” requirement is Constitutional. In Myers, OTOH, the position was a cabinet-level position, and the Court held it is unconstitutional to restrain the President’s power to fire that person (which, in Myers, was the Postmaster General.)
    Unlike the Independent Counsel, the AG is himself a cabinet level position that makes and executes policy. Myers, not Morrison, controls.

    1. Whoops. Sorry. I did see the reference to Myers.

      I still think Myers controls. The AG has far more power than the Independent Counsel. Even more than the Postmaster General. Clearly not an inferior officer.

  9. If Congress can forbid certain case categories of Presidential interference in the executive branch, it can forbid ANY category of interference subject to the will of whatever particular ruling class happens to be sitting in Congress. A recipe for a nightmare.

  10. Why do the liberals always screech about changing the system when they are out of power?

    1. Probably for the same reason the Republicans care about the debt and deficit only when a Dem is president. Politicians are, generally-speaking, hypocrites and immoral scum.

      News at 10:00!!!

      1. A lot of liberals want to change the system even when they’re in power. They just don’t have the super majorities necessary to actually do it.

  11. Funny how liberals rail against Trump being some kind of supposed “dictator” but how they want to transfer all executive and governmental power to unelected bureaucrats. Hello pot, meet the kettle…

    1. That prescription gives one the EU Commission of unelected tyrannts

      1. The EU is a tyranny?

        1. It’s more cruel, unreasonable, and arbitrary in its use of power than you’d know.

          1. Compared to the Constitution, it’s got hardly any power.

  12. Oh boy. Oh boy. Since 2016, I’ve hoped that opinion might swing in the direction of limiting the power of government. If we’re going to make an amendment, let’s limit the power of Congress and the Judiciary as well. How about a narrow reading for the interstate commerce, general welfare, and necessary and proper clauses?

    1. Yep. The interstate commerce power should be limited to only activity that directly crosses a state line.

  13. Let’s make a Law Enforcement version of the Fed. I’m sure everybody will be happy with that.

  14. Who cares what Cass Sunstein has to say about anything?

    1. Prof. Blackman, obviously.

    2. The ideas of the eggheads in academia as filtered out through blogs, talking heads on TV, and op-eds, eventually end up framing the debate in due time. Examples: intersectionality or the Laffer Curve. Better to respond at the larval stage to Sunstein’s bad idea than wait until it emerges fully formed as some “big idea” of the left.

  15. If the concern is over the existence of political motives interfering in prosecutorial decisions, I’m not sure that Texas demonstrates that it is an issue unique to the unitary executive. Rather the opposite, I’d say.

    If the concern is just that the executive has too much authority, I’d be inclined to think we could do with fewer laws, not more independent executive branches.

  16. Perhaps Prof Blackman wants to be the new DNI! Surely no one else is in his league when it comes to self-promotion.

    1. Stop whining. Josh is going to make President Wohl an outstanding head of OLC.

  17. Sunstein got an Op-ed published in the Times?! I wonder what that’s like

  18. There should be a proviso specifying that this statute only applies if the President has orange hair, is a real estate developer, and is from New York City.

    Other Presidents can be trusted to wield their power more responsibly.

  19. This whole concept falls afoul of the oldest concept. Who watches the watchman?

    In our system, everyone reports to an elected official, who reports to the people. We can directly or indirectly hold everyone in the government responsible. If we make government officials immune to the office holders, we lose our ability to hold them responsible for abuse of power.

  20. This is a lot of hand wringing over the President sending out a few Tweets.

    Stone has been sentenced to 3, 4 months by a Judge that isn’t beholden to Trump in any manner. She was aware of both the original sentencing recommendation, the revised recommendation, and all of the controversy over them.

    It seems our current system already has the checks and balances that are needed to handle situations like this.

    And here are some of the Judges remarks at sentencing:
    “For those of you new to this and who woke up last week and became persuaded that the guidelines are harsh…I can assure you that defense attorneys and many judges have been making that point for a long time, but we don’t usually succeed in getting the government to agree,”

    Of course what she doesn’t say is the main enhancement in the sentencing guidelines that makes the recommendations seem so harsh is the “didn’t roll over and plead guilty when they had a chance” enhancement.

    1. You’re arguing the DoJ has no power in federal court?

      You’re saying the protest-resignations over there are just normal times?

      If the checks and balances are sufficient, and the DoJ is still giving Presidential friends an easier ride for crimes committed in service of the President’s reelection, and targeting the President’s electoral opponents, I guess that means this is nothing to worry about?

      Your final argument about the sentencing guidelines being overly harsh is a good one, if it weren’t for the rank level of special pleading involved in your sudden concern.

      1. Why are you slandering Amy Berman Jackson like she’s some Trump Apparatchik? She certainly could have sentenced Stone to 9 years with what she had in front of her. But she said straight out that 3 years, 4 months was an appropriate sentence and didn’t see any undo leniency in the DOJ recommended sentence. Ill admit that 95% of federal defendants cases don’t get the same scrutiny that Roger Stone got, so a lot of draconian sentences are never reviewed, but we shouldn’t be aghast at justice being done in this case, regardless of the norm.

        1. It was just a non-binding recommendation. The hair tearing reaction is far, far, far in excess of the actual impact of Trump’s comments.

          1. Well Bob, that’s because real patriots care when Government officials behave in a corrupt manner, regardless of the impact of that corruption.

            1. Like when Clapper, Comey, McCabe, and Brennan perjured themselves to Congress? Or when McCabe lied to investigators? Or when James Wolfe leaked the FISA app? Or when those FBI contractors illegally searched the NSA databases thousands of times? Or like how Berman-Jackson conveniently randomly gets assigned many of the politically charged DC cases?

              1. Seems like you need to brush up on your English, Sam. Your understanding of what constitutes ‘corruption’ is sorely lacking and over-inclusive at the same time.

          2. That’s why it’s strange that the White House got involved at all. All the smart betting was that Stone wasn’t going to get anything near nine years. And besides, Trump has the power to pardon or commute the sentence. What was the point of it? It seems like it just gives a bad appearance of cronyism for no reason.

      2. “and the DoJ is still giving Presidential friends an easier ride for crimes committed in service of the President’s reelection, and targeting the President’s electoral opponents, ”

        Sarcastro literally must live in Bizarro World.

        The President’s political enemies are walking free with book deals and CNN gigs, his friends are getting SWAT’ed on camera and getting the book thrown at them.

        1. Again, you are comparing someone convicted of a crime in a court of law to someone convicted on talk radio.

          1. Again, you are comparing someone convicted of a crime in a court of law to someone convicted on talk radio.

            This sort of smug observation just reinforces the problem as stated: partisan prosecutorial discretion.

            “For my friends, everything — for my enemies, the law.”

            1. You…uh…stepped on due process in your haste to speculate yourself into a partisan double standard.

              there is no evidence of the partisan pattern what you are talking about, even if talk radio tells you otherwise.

  21. So if you don’t want a duly elected President to have control over the DOJ, who do you want, the federal bureaucracy? Somehow that seems like a terrible idea.

    1. Yeah, we have an apparatus for the administration of justice. It works pretty well when the President isn’t inter fearing with it to redirect it to his electoral benefit.

      1. I’m surprised that no one has mentioned it before now, but how would you explain this quote of Eric Holder?

        “Attorney General Eric Holder brushed off a question Thursday about when he might leave the administration. Instead, the top lawman professed his allegiance to President Barack Obama.

        ‘I’m still enjoying what I’m doing, there’s still work to be done. I’m still the President’s wing-man, so I’m there with my boy. So we’ll see,’ Holder said in an interview on the Tom Joyner radio show.

        Holder, who’s been held in contempt the House of Representatives and has been the focus of numerous Republican-led Congressional investigations, also joked that his childhood in New York left him well prepared for the slings and arrows of Washington.”

        1. mad_kalak, Holder was a terrible Attorney General, but what has that got to do with this discussion? Are you simply so accustomed to whatabouttery that it surprises you if it does not occur?

          1. Well, we agree that Holder was a terrible attorney general. That’s a positive step forward. What it has to do with the discussion is obvious if you read Sarc’s comment. I was just asking him to explain what that quote means. To me, and most people, it meant Holder (and Lynch) had no difficulty explicitly stating that they were interfering for Obama’s and the Democrat Party’s electoral benefit. That’s what a good wingman does. Shake and bake baby.

            The blog post itself was about changes in law to wall off the AG…which is a problem for Sunstein and Sarc now, but not under Obama/Holder/Lynch. Therefore, it’s more calling about hypocrisy than whatabouttery, thus undermining the puffed up moral underpinnings of their argument.

            1. “To me, and most people, it meant Holder (and Lynch) had no difficulty explicitly stating that they were interfering for Obama’s and the Democrat Party’s electoral benefit.”

              No, you do not speak for most people.

              Considering the response was to the question of “when are you leaving,” your interpretation of his remarks is remarkably wrong, though perhaps not all that remarkable given your partisan views.

            2. Whatabouttery occurs when a charge of hypocrisy is leveled against the past.

        2. “the federal bureaucracy.”

          “Eric Holder!”

          M_K do you even know what the federal bureaucracy is?

  22. There is no need for statutory constraints on a president’s power to administer justice. At least in principle, that power is adequately constrained constitutionally. Unfortunately, during the many years since the founding, the part of the Constitution which does that work has been almost completely forgotten. It is the sovereign power part. The part implicit in the first 3 words: We the People.

    Remarkably, given its moribund condition in modern political awareness, sovereign power is the greatest power in American constitutionalism. It controls all the others, and not just in some formalistic way, but actually, and continuously.

    Consider the Roger Stone case. The president claims unitary control of the Justice Department, and asserts a power to intervene to procure judicial outcomes he prefers. Does he have that power? Of course not.

    The power to dictate judicial outcomes is sovereign power, not mere presidential power, which is far too puny for that. Does the president, any president, have the power to deprive a defendant of liberty, or even of life? Nobody thinks so. Everyone understands, through inherited force of habit, if not otherwise, that some power other than the president’s dictates such outcomes.

    That heritage is a remnant—a last surviving trace—of something which was constantly and consciously in view during the founding era—the necessity for sovereign power in the day-to-day operations of every government. The historical record is explicit about that.

    Another such remnant cropped up during the fight over impeachment, where it created disastrous confusion about the basis of impeachment, simply because so much about sovereign power has disappeared from the historical memories of both legal scholars and laymen office holders. Because too many of those did not realize they were tasked with exercise of sovereign power, they got bogged down in fruitless legalisms—mulling the common law, parsing constitutional clauses which apply only to lawmaking, and rummaging through irrelevant statutes—all to the detriment of a nation which needed those legislators simply to assert the sovereign power delegated to them by the People—to protect the effectiveness of the People’s Constitution.

    So what was the President’s duty during the Stone prosecution? It was to administer the Justice Department. To keep it supplied with qualified personnel, to give them office space, to buy them paper clips—and to stay out of the way while those constitutionally vetted officials applied the sovereign power of the People according to law, and according to the independent judgments of the Judicial Branch.

    The President does not personify American sovereignty. He never does. American sovereignty belongs to the People themselves. It is uniquely embodied in the United States of America. That is why the Stone case was titled, “UNITED STATES OF AMERICA v. ROGER JASON STONE, JR.,” not “The President of the United States v. Roger Stone.”

    So prosecution is a sovereign power, not a presidential power. And thus, if the awesome force of sovereign power proves insufficient to keep prosecutions within bounds, and to keep the president properly restrained, then that cannot be attributed to lack of some needful statute—which would prove puny by comparison.

    What the present case needed was greater awareness by the president, and the attorney general, and all their henchmen, that it was sovereign power they were contending with—a power that belongs to the People, not to them. They thought what they did was a mere exercise of government power they already had. In fact, the power they traduced was one which belongs to others, to the People themselves—and which government officers, including the highest officers, cannot control—and should not conclude they can resist except at their peril.

    Americans who want their liberty protected, and their joint sovereignty preserved, must find a way to use force to disabuse a runaway government of the illusion that government itself has become sovereign. From there, it is a short step to concluding that the chief magistrate himself is sovereign.

    The longer the nation must wait for that forceful correction, the more dangerous the attempt to administer it is likely to become. As a concept, sovereign power is greatly faded. To let it fade much more, is to invite a contest by force.

    1. Stephen, your theory makes no more sense than the tax protesters who say that they are “sovereign citizens”.

      The “people”, without a government with arms to control them, end up as Lord of the Flies. The “people” not only can’t govern themselves, they are, as Hamilton called them, a “beast”.

      The US Constitution may say “we the people”, but it was enacted by a small group of white male property owners. So “we the people” was a lie- it was political propaganda.

      The reality is the Constitution is a charter, imposed by the framers. All sovereign power rests in the federal government it creates and the state governments it recognizes. There is no other sovereignty, and “we the people” have nothing other than what it grants us.

      That’s how government works. It monopolizes the use of force and then imposes rules. The point of a constitution is to try and increase the likelihood we get good rules. But the “people”? They can’t run anything. Their say is limited to voting and serving on a jury every so often.

      1. Dilan Esper:
        “The “people”, without a government with arms to control them, end up as Lord of the Flies. The “people” not only can’t govern themselves, they are, as Hamilton called them, a “beast”.”

        Thomas Jefferson:
        “Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.”


        While Stephen doesn’t make sense, sovereignty does not reside in the federal government. Sovereignty resides, or at least was theorized, intended to and should reside, with the People. Thus the legitimacy of government is contingent upon consent of the governed. It’s called popular sovereignty.

        And this sovereign will of the People was expressed and exercised principally through the States. It is between the States that a Union was formed, and by the States that the Constitution is ratified along with amendments thereto from time to time. There can only be one real sovereign, but if you were to say one thing is “more sovereign” than other, the States come after the People, and the federal government comes at a distant third. Of course, this was all subverted drastically by Lincoln and we’ve been living in a different era since then.

        1. Popular sovereignty is a nonsense concept, used by the framers to sell the Constitution.

          The public is incapable of running the government and the only real form of popular sovereignty is anarchy.

          No, the “people” aren’t sovereign. If they were all those tax protesters would win their cases.

  23. “The longer the nation must wait for that forceful correction…”

    The correction is coming November 2020 when 4 years of resistance is going to be jammed down your throats.

    So what was the President’s duty… to administer the Justice Department[?] To keep it supplied with qualified personnel, to give them office space, to buy them paper clips—and to stay out of the way while those constitutionally vetted officials applied the sovereign power…”

    The Justice Department has a history of malfeasance and selective prosecution against both racial minorities and dissident whites. I hope you aren’t going to try to say that the DOJ isn’t right there in the deepest part if the swamp the voters sent Trump to DC to drain. I don’t support every tweet, or pushback from the President, but arguably he has freed more people from the grasp of unjust federal laws than any president in history.

    I don’t want him just giving them an unlimited supply of paperclips, i want them to know they are being watched.

    1. “I don’t support every tweet, or pushback from the President, but arguably he has freed more people from the grasp of unjust federal laws than any president in history.”

      Okay – make the argument then. Let’s see your sources and statistics for these unfortunate criminals Trump has set free from burdensome, unjust laws.

      Keep in mind that I’m also expecting you to prove the various laws you claim vindication from were factually unjust.

      Let’s not pretend that you’re actually capable of making this argument with facts, but I’ll hold out the 1% chance you will.

      1. Is lying to congress and/or federal investigators a crime? Or is it a crime just for those of one political persuasion?

        So undoing political prosecution, you know like existed in Soviet Russia, is a bad thing.

        He actually has not intervened on Stone’s behalf but also has a right to express his opinion on it. So he hasn’t doe anything in this area yet besides commuting Blago and a coule of other guys sentences. Also, seriously Blago is a moron but 14 years?

        You know like Obama and his professor buddy or Obama and Trayvon or Obama and Michael Brown, he actually sent Fed reps to his funeral.

        1. Ha ha so in response to Jason’s question you’ve got Rod Blagojevich? Hilarious!

      2. DOJ on Trump ‘s First Step Act:
        “Over 3,100 federal prison inmates will be released from the Bureau of Prisons’ (BOP) custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.”

    2. I don’t support every tweet, or pushback from the President, but arguably he has freed more people from the grasp of unjust federal laws than any president in history.

      “Hi. I’m Kazinski. I’ve never heard of Abraham Lincoln.”

  24. All this angst over a non-binding DOJ suggestion about someone who is never going to prison.

    More Resistance!!! fire in hair nonsense.

    1. The argument that the DoJ has no formal power in sentencing, so interfering in their independent operation for a particular sentencing recommendation is okay, has quite a few flaws in it.

  25. Once upon a time, someone wrote a letter to the President of Switzerland offering to be Switzerland’s Chief of Naval Operations. Upon being informed that Switzerland has no Navy, he responded, “So what? The United States has a Department of Justice.”

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