We are excited to welcome Matthew Urfirer as a guest essayist this week on the Sentencing Matters Substack. Matt is a third-year law student at Harvard Law School and a 2017 graduate of Harvard College. Before law school, Matt worked in politics and at Avascent, a consulting firm. After graduation, he plans to work in the National Security Practice Group at Skadden Arps in Washington D.C.
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Headlines suggest that America has a problem. The New York Times warns that the “Justice Dept. Girds for a Test of Its Independence,”[1] while the AP notes that “Trump and allies boost calls for Justice Dept. takeover in new attack on democratic institutions.”[2] Generally, the framing of “Trump vs. the Independence of the FBI and DOJ”[3] is a common one. A major assumption underlying the concern surrounding the incoming Trump Administration is that the federal prosecutors of the Department of Justice are currently independent from political direction — and that they should remain that way. Yet history demonstrates that the appropriate exercise of prosecutorial independence is a balancing act.
Theoretically, the prosecutorial function in America is both a dispassionate application of politically neutral law and yet simultaneously subject to political prioritization and accountability.[4] At its best, this balance ensures that the law is applied in accordance with the public will to further the lofty goals of the criminal justice system. Untethered from accountability to elected authority, the prosecutorial function is an inherently dictatorial and anti-democratic power, and the public rightly expects the president to address dynamic threats by strategically orienting law enforcement resources. On the other hand, if the prosecutorial function is guided by political interests, it becomes a tool to further the very corrupt and anti-democratic ends the People have granted prosecutors the authority to fight. There is an inherent tension within the dual mission of the Department of Justice, which must uphold the dispassionate rule of law while executing a political actor’s agenda.
The actions and reactions surrounding the rise, fall, and resurrection of former and now-again President Donald Trump have brought America to a historic reckoning with the appropriate balance between the independence and political direction of federal prosecution. In vindication of a strategy of inundation, Trump’s frequent threats to prosecute his political “enemies” largely flies under the radar of public consciousness.[5] His proposed FBI Director has an “enemies list” mostly consisting of those who have criticized or stymied President Trump.[6] Though the future may be a mystery, it is hardly an act of clairvoyance to recognize that a status quo dependent on institutional norms and the upstanding character of key government officials will not constrain a second Trump Administration. This essay will assess the historic and constitutional basis for our current system of prosecutorial independence, and question what recent legal and political developments mean for the future of the federal prosecutorial function.
Old History and New History
Among the many wonders and horrors of modern American life that would shock our nation’s founders, one might suspect a good deal of surprise at the tremendous wellspring of authority that has emerged from the sparse seeds of direction provided in Article II of the Constitution. Article II outlines the authority of the Executive Branch, yet it provides little guidance on the appropriate relationship between the president and the prosecutorial function. Its most significant guidance is that “the executive Power shall be vested in a President” and that “he shall take Care that the Laws be faithfully executed.”[7] It does not reference the words prosecution, enforcement, discretion, or criminal law (with a notable exception concerning presidential impeachment).
Of course, part of the time-travelling founder’s surprise may be that there is a potent federal prosecutorial function at all — in the founding era, states were understood to be the principal prosecutorial actors, reflecting the “constitutional principle of decentralized law enforcement.”[8] In the early republic, there were few federal crimes, and they concerned only matters of particular federal jurisdiction. The Federal Judiciary Act of 1789 created the role of “attorney-general” with no relationship to district litigation and only two responsibilities: to represent the United States in front of the Supreme Court and to provide advice to the President or heads of departments upon request.[9] George Washington’s first Attorney General, Edmund Randolph, served part-time and was persuaded to accept the position in part because it would help make his concurrent private practice more lucrative.[10] Despite more recent assertions to the contrary, it stands to reason that the founding era’s Constitution did not mandate an inflexible role for the relationship between the elected president and federal prosecution in the United States.
To wit, the connection between prosecution and political interest has taken many forms throughout American history. In the 19th century, states — still responsible for the primary administration of justice in America — began electing prosecutors to address the development of political patronage networks that wielded the power of appointment to ensure that prosecutors acted in the interest of the state’s dominant political actors.[11] Although Presidential appointment has always been the practice at the federal level, conceptions of the scope of the President’s authority over subordinate executive officers has changed substantially over time.
To avoid delving too deeply into the history of the expansion of federal bureaucracy and power, suffice it to say that the development of the administrative state discovered (or implanted) additional elements of Executive authority in the sparse language of Article II. Several Supreme Court cases, beginning with Myers v. United States,[12] and continuing with Seila Law LLC v. Consumer Financial Protection Bureau,[13] established the President’s constitutional authority to discretionarily remove and direct the actions of subordinate federal officers. In the wake of the landmark ruling in Trump v. United States (discussed later in greater detail), today the President’s theoretical constitutional authority includes nearly unilateral discretion over the hundreds of thousands of individuals who comprise the expansive investigative and prosecutorial powers of the federal government.[14] Yet despite what may appear to be an otherwise steady drumbeat of increasingly unitary perspectives on executive authority over the past century, assertions of principled prosecutorial independence emerged in the aftermath of the Watergate scandal and still define the relationship between federal prosecutors and political actors — for now.
From Watergate to the 2024 Justice Manual
The Saturday Night Massacre of the Watergate scandal, in which the most senior leaders of the Justice Department were purged for refusing to obstruct justice to protect President Nixon from mounting political (and criminal) liability, marked a nadir and turning point for prosecutorial independence. In its aftermath, a flurry of bipartisan proposals sought to codify transparency and impartiality in the Executive Branch to “restrain the imperial presidency.”[15] Despite fading recollections and lapsed statutory effects, the ideas and spirit of Watergate reforms — both discarded and enacted — continue to shape our conception of the appropriate role of political influence in prosecutorial decision-making.
Among the most profound proposals never realized was Senator Sam Ervin’s bill to remove the Department of Justice “insofar that it is possible” from the control of the President by establishing it as an independent agency.[16] This reform would “[r]emove the Department of Justice from the executive departments” and vest “all functions of other officers” and agencies of the Department of Justice in the Attorney General, who would be appointed for a six-year term and be removable only for neglect of duty.[17] Senator Ervin’s proposal ultimately faced insurmountable opposition from a range of critics, including the American Bar Association and members of his own party, who argued that so much independence would harm the public interest. Perhaps most influentially, Archibald Cox, the Special Counsel at the heart of the Saturday Night Massacre, argued against Senator Ervin’s bill because “the president should have the power and responsibility” to set the legal agenda and “have someone attuned to his philosophy of government” charged with executing the president’s decisions.[18] In addition to these normative considerations, critics argued that any proposal to cleave the prosecutorial functions of the Justice Department from the Executive violated the Constitution.
Despite genuine desire for reform, during hearings on Senator Evin’s proposal many eminent witnesses testified against it, arguing it violated both the Vesting and Take Care Clauses of the Constitution — and that other avenues existed to address Ervin’s underlying concerns.[19] President Johnson’s Attorney General, Nicholas Katzenbach testified that “the President is responsible for the administration of the law” and “[a]nything which dilutes that responsibility operates in ways which contravene both the letter and the spirit of the Constitution.”[20] Katzenbach further expressed an opinion held then (and now) by many, that “[t]he best we can do, or hope to do, is to check the exercise of power, expose it to scrutiny, and to maintain a political ethic which makes the exercise of public power a public trust.”[21] The testimony of former Supreme Court Justice Arthur Goldberg similarly focused on the importance of ethics, arguing that the Senate should exercise their Advice and Consent responsibilities to ensure that Department leadership has the integrity to be “capable of saying to a President, no, the law does not permit this; I will not permit this; and you must not engage in activities such as have been contemplated.”[22] Despite these critiques of a bold legislative solution, more tangible changes than a renewed appreciation for character in the Executive emerged from Watergate.
Two of the most significant post-Watergate reforms were the creation of an independent counsel statutorily protected from presidential interference and the implementation of stringent policies at the Justice Department to govern the relationship between the Department and the White House.[23] The independent counsel law was designed to be used, with a low “hair trigger” threshold of evidence of wrongdoing beyond which the Attorney General was required to authorize an independent counsel — only removable for good cause — to investigate.[24] Over the course of its relatively short-lived existence, several independent counsels were appointed, and they managed to embarrass and distract presidential administrations of both parties. Despite some success, especially in prosecuting individuals associated with the Iran-Contra Affair, by the end of the 1990’s there was a “general consensus” that the concept had failed because it veered too far in the direction of independence without sufficient accountability.[25] Or, as Professor Adrian Vermeule described it, the independent counsel was recognized as “a kind of constitutional Frankenstein's monster, which ought to be shoved firmly back into the ice from which it was initially untombed.”[26]
Notwithstanding its harsh reception today, the scheme notably managed to pass constitutional muster when it was assessed by the Supreme Court in Morrison v. Olson.[27] In finding that Congress could ensure that certain Justice Department officers could only be fired for good cause, the court determined that Congress could “reduce[] the amount of control” a president “exercises over the investigation and prosecution of a certain class of alleged criminal activity.”[28] Looking back, the decision seems to represent a high-water mark for constitutionally permissible constraint on Executive control of the prosecutorial function. Despite the extinction of the independent counsel, Morrison v. Olson has not been formally overruled, and it may provide some rhetorical heft to the primary area where prosecutorial independence remains alive and well today — the Justice Manual.
The Justice Manual lays out the policies, principles, and practices that govern federal prosecutors, and it is replete with assertions of political independence in the exercise of prosecutorial discretion. For example, in providing guidance on when to initiate or decline charges, the Manual warns that a prosecutor “may never make a decision regarding an investigation or prosecution . . . for the purpose of giving an advantage or disadvantage to any candidate or political party” and that a prosecutor should not consider “factors extraneous to an objective view of the law and facts” when deciding whether to bring charges, such as whether a sympathetic jury might raise reasonable doubts about the success of prosecuting “an extremely popular political figure.”[29]
Since Watergate, every administration has promulgated an official White House Contacts Policy, which today governs all communications between Department employees and political actors in the White House and Congress.[30] The language in this section of the Manual emphasizes the paramount importance of political independence from the White House. It proclaims that “it is a fundamental duty of every employee” to ensure that the “Department’s investigatory and prosecutorial powers be exercised free from partisan consideration” because the rule of law depends upon it.[31] The Manual stresses that “the trust of the American people” can only be earned “through our adherence to the longstanding Departmental norms of independence from inappropriate influences,” and abiding by the “procedural safeguards” designed to protect law enforcement actions “from partisan or other inappropriate influences, whether real or perceived, direct or indirect.”[32]
Underneath the aspirational language, the gist of the policy is the establishment of a strict chain of command for all communications with the White House, and an assertion that the Department “will not advise the White House concerning pending or contemplated criminal or civil law enforcement investigations or cases unless doing so is important for the performance of the President’s duties and appropriate from a law enforcement perspective” (emphasis added).[33] Though it is not immediately clear what exactly “appropriate from a law enforcement perspective” entails, the framing subtly implies that both the President’s interest and a separate Justice Department sense of propriety must be satisfied before engaging in discussion about future actions. Perhaps as a reflection of a post-Watergate conception of constitutional authority, this requirement is framed as “preserving the President’s ability to perform his constitutional obligation to ‘take care that the laws be faithfully executed.’”[34]
Although the policies and principles of the Justice Manual provide an admirable and administrable basis from which to structure the relationship between the Justice Department and the White House, the unfortunate reality is that its guidance has no independent legal force.[35] The Manual recognizes that prosecutorial discretion “exists by virtue of the prosecutor’s status as a member of the Executive Branch” and “the President’s responsibility under the Constitution” to ensure that the laws are “faithfully executed.”[36] The Manual can be changed from administration to administration, and though longstanding policies dating back to Watergate may have substantial precedential influence and buy-in from rank and file prosecutors, at base they are purely internal norms of the Executive Branch — and not defensible against a president.
The End of Watergate: Norms and Trump v. United States
“Today’s Americans live not in the immediate, reassuring afterglow of Watergate, but in its long, destabilizing shadow.”[37] There seems to be a consensus that the Watergate reforms “had a great run,” but that their deficiencies and weaknesses could not, and will not, withstand the Presidency of Donald Trump.[38] Choosing a particular incident to support the proposition that the prior and incoming Trump Administration is unlikely to adhere to post-Watergate norms of prosecutorial impartiality is like trying to find hay in a haystack. In February of 2020, over two thousand former Justice Department attorneys signed an open letter condemning President Trump and Attorney General Bill Barr’s intervention in the prosecution of Roger Stone.[39] The letter invoked the Justice Manual to emphasize how discordant the intervention to frustrate the administration of justice in the Stone case was with the norms and procedures that explicitly govern such prosecutions. Although the letter was a powerful statement of widely and deeply held values, today it can be seen to highlight the weakness of a norm-based system rather than its strength: despite the clarity of the normative violation to so many, the effect of the letter is hard to identify. If the primary legacy of the Watergate reforms is norm-based adherence to principles of prosecutorial independence, we should be worried. Unscrupulous leadership can only be cabined by enforceable legal requirements. Unfortunately, in Trump v. United States, the Supreme Court likely removed any such possibility as it pertains to the President’s relationship with the Department of Justice.
The court’s decision in Trump v. United States marks a troubling and historic reconfiguration of the relationship between the Executive and the prosecutorial function in three primary ways. First, the majority opinion asserts that the President has “conclusive and preclusive authority” and “absolute discretion to decide which crimes to investigate and prosecute” regardless of whether the investigation and prosecution have any basis in fact or law.[40] Faced with credible criminal allegations stemming from directions to begin and publicize spurious investigations, the court held that whether “the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”[41] Such an expansive formulation functionally precludes any basis to find that prosecutorial independence from presidential direction has any constitutional foothold. Yet the Constitution does not necessitate such a result. One might imagine that the constitutional imperative to take care that the laws be “faithfully” executed would prohibit conduct that amounts to obstruction of justice — regardless of the bureaucratic instrument used to achieve that result. In other matters of constitutional interpretation, implicit constitutional values are operationalized to cabin federal authority (e.g., limits to the commerce clause based on individual liberty, the right to privacy, etc.); there is no principled reason why the “rule of law” could not have animated some small limit to Executive control over the prosecutorial function.[42]
Second, the Court determined that the other branches have effectively no role in the regulation of the Executive and prosecutorial relationship. The Court asserted that “Congress cannot act on, and courts cannot examine, the President's actions on subjects within his ‘conclusive and preclusive’ constitutional authority.”[43] Although the Court did not explicitly overturn Morrison v. Olson, its articulation of Executive authority seems to squarely rule out a role for any congressionally imposed limitation on Executive control of any aspect of the federal prosecutorial apparatus. Third, the Court’s expansive proclamation of immunity frees the President from any concept of criminal liability stemming from his directions to the Justice Department. The Court held that the President is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority,” which “an Act of Congress . . . may not criminalize.”[44]
In sum, the Court’s ruling in Trump v. United States establishes total control of the prosecutorial function in the President, it precludes Congress or the Judiciary from assessing or altering the President’s relationship to the Justice Department, and it asserts absolute immunity against general and specific criminal laws stemming from the President’s use of this absolute authority. In several respects, it appears to wipe out any legal basis for post-Watergate independence at the Justice Department. These implications will be leveraged by Trump’s advisors, who argue that the notion that the Justice Department should be at all independent is a “false paradigm” advanced by “elite print media” and “academia” with a diluted and false view of the Constitution, which rightfully establishes that a President can only be held accountable for violations of the law through impeachment or the ballot box.[45] From this perspective, it may not be an exaggeration to view Trump v. United States as setting the stage for a new paradigm of unfettered Executive direction over the federal prosecutorial function. The ruling is problematic for many reasons, not least of which is its apparent misunderstanding of the original intent of the drafters of the Constitution.[46] Ultimately however, perhaps the most frustrating element of the ruling is the barriers it imposes to future reform to ensure impartiality and accountability.
Conclusion: Reforms and Norms
The Trump phenomenon has spurred countless opinion pieces, policy briefs, and law review articles proposing various reforms to arrest what many view as a dangerous capacity for corrupt and politically motivated prosecution. However, barring the unlikely avenue of constitutional amendment, there is relatively limited space for proposals to bolster prosecutorial independence in the wake of Trump v. United States. Probably fatally, many solutions rely on something less than a legally enforceable mechanism. One indicative report contains four recommendations to strengthen the Justice Department’s independence, yet it misses the core constitutional problem that is likely to undermine many such proposals: internal Executive Branch policies cannot be operationalized against an unfettered Executive.[47] Two of the four recommendations address internal DOJ policies, which can be altered by new leadership. Another recommendation, for stronger congressional oversight and mandatory reporting for violations of the White House Communications policy, faces a similar problem: even if Congress could constitutionally enact such a requirement (which an opinion from the Justice Department’s Office of Legal Counsel[48] and Trump v. United States suggest it may not), the underlying Department policies are a moving target because they are set at the President’s discretion. The final recommendation of the report, which would have deserved serious consideration, is to codify critical provisions of the Justice Manual through the formal process of notice and comment rulemaking, which would make future revision a more difficult endeavor.[49]
Other recommendations seek to prepare for political prosecutions by ensuring they are carried out with enhanced consideration and procedural legitimacy. One such proposal seeks the implementation of “Prosecutor Juries” formed from a bipartisan group of former federal prosecutors, which would require a two-thirds majority vote to proceed with the prosecution of a senior elected official or their staff.[50] Apart from implementation and constitutional challenges, there are several downsides to such an approach. Rather than enhance bipartisan legitimacy, it might further the perception of partisanship if the “prosecutor jury” fails to advance the prosecution, tarring the indictment as partisan and dooming the administration of justice without consideration of the merits underlying the charge. Fundamentally, the proposal relies on a contradiction: it assumes the impartiality and integrity of prosecutors who form the jury, while doubting the integrity of prosecutors to abide by their obligations to only bring meritorious charges.
Regardless of whether this skepticism is justified, it is increasingly common — even the Supreme Court accepts such a pessimistic framing. The majority in Trump v. United States determined that their grant of immunity was the only way to overcome the “likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors,” leaving presidents at the whim of “[a]n enterprising prosecutor in a new administration.” The opinion chides the naivety of the dissent as “content to leave the preservation of our system . . . to the good faith of prosecutors.”[51] Such perspectives presuppose that the values associated with the proper exercise of the prosecutorial function are fundamentally unreliable, and that the post-Watergate concept of prosecutorial independence now defines neither public perception nor prosecutorial conduct. Though this cynicism may increasingly dominate outside of the Justice Department, faith in traditional norms of apolitical operation appears to have retained a sacrosanct status within it.
As a product of and believer in the post-Watergate consensus, there is a tragic irony in the fact that Attorney General Garland’s unwavering commitment to historic institutional norms may contribute to their demise. Returning to the helm of a Department buffeted by Trump’s first term, Garland made adherence to the traditional post-Watergate norms a hallmark of his tenure. Marking the first anniversary of the January 6th attack on the U.S. Capitol, Garland defended the bottom-up approach to the prosecution of perpetrators by arguing that “[w]e conduct every investigation guided by the same norms. And we adhere to those norms even when, and especially when, the circumstances we face are not normal.”[52] Unfortunately, the abnormality of the challenges Trump poses to the Department of Justice cannot be addressed by a temporary reversion and rededication to historic norms. Perhaps Garland would disagree. In the same speech, he noted that “in the wake of the Watergate scandal, the Justice Department concluded that the best way to ensure the department’s independence, integrity, and fair application of our laws — and, therefore, the best way to ensure the health of our democracy — is to have a set of norms to govern our work.”[53] While that may have been true in a post-Watergate America, it is not true in a post-Trump America.
Although Merrick Garland is not the only person guilty of wanting to move on from the Trump era, his faith in post-Watergate norms of prosecutorial conduct can be characterized as a noble commitment ill-suited to the scale of the problem. “By all accounts,” Garland was deeply concerned with the appearance of impropriety if Biden’s Justice Department pursued the former president.[54] The irony is difficult to overstate. In a plodding attempt to avoid accusations of political influence, Garland convinced Republicans and Democrats alike (for exactly opposite reasons) that he was improperly swayed by the political gravity of the Department’s actions. Regardless of whether Garland’s concerns led to a delay that ultimately doomed the prosecution of Donald Trump, adherence to the norms that Garland identified as the “best way to ensure the Department’s independence” likely bolstered a political dynamic that explicitly disavows those very norms and the value of independence they are meant to protect. Rather than instill a renewed public sense of the importance of post-Watergate norms, Garland’s tenure seems to highlight the failure — and may presage the demise — of norms that were designed for a political culture that no longer characterizes the American republic. A final irony is that a person who so values the post-Watergate norms at the Justice Department may have overlooked a crucial element in what made them work. The policies that emerged in the aftermath of the Watergate scandal were an adaptation to the emergence of a once-latent threat to foundational civic values. Yet rather than adapt to a new threat, the Biden Administration’s Justice Department largely doubled down on a prior era’s solution. Why didn’t the Biden Administration pursue more enduring measures, such as codifying the White House contact norms that Garland believes represent an “essential element . . . that ensure the Justice Department’s adherence to the rule of law”?[55] Perhaps Garland believed that the challenges Trump posed were aberrant rather than systemic, or maybe he agrees with Attorney General Katzenbach — the best we can hope to do is to practice a political ethic that demonstrates our values.
In retrospect, the testimony during the Watergate hearings that focused on the character and integrity of those we trust with high office seems prescient. At the dawn of a new Trump Administration, those unheeded admonitions — not any failure of policy reform — may represent our most critical shortcoming. Without institutional, criminal, or constitutional constraints on Executive direction, the individual integrity of Justice Department officials may once again prove critical. Should that bastion prove insufficient, those who may be targets of spurious prosecution may do well to consider legal representation with a strong track record in front of a jury. After decades of reform, the last barrier protecting an increasingly beleaguered polity from openly political prosecutions may very well be the process and principles that have always served as the ultimate arbiter of criminality — convincing a jury of the defendant’s peers of guilt beyond a reasonable doubt. Unfortunately, whether these traditional bulwarks will ensure the equitable dispensation of justice may be a question to which we will soon have an answer.
[1] Devlin Barret, “Justice Dept. Girds for a Test of Its Independence,” The New York Times, November 29, 2024, available at https://www.nytimes.com/2024/11/29/us/politics/justice-department-independence-trump.html.
[2] Nicholas Riccardi, “Trump and allies boost calls for Justice Dept. takeover in new attack on democratic institutions,” the Associated Press, August 5, 2023, available at https://apnews.com/article/trump-indictment-justice-department-takeover-democracy-threats-7b399ab628db7330ed99fac8c3784170.
[3] Nick Akerman, “Trump vs. the independence of the FBI and DOJ,” The Daily News, December 12, 2024, available at https://www.nydailynews.com/2024/12/12/trump-vs-the-independence-of-the-fbi-and-doj/.
[4] See United States Department of Justice, Justice Manual, § 1-8.000 and § 9-27.000.
[5] Rebecca Jacobs, “Trump has threatened dozens of times to use the government to target political enemies,” Citizens for Responsibility and Ethics in Washington, July 23, 2024 available at https://www.citizensforethics.org/reports-investigations/crew-investigations/trump-has-threatened-dozens-of-times-to-use-the-government-to-target-political-enemies/.
[6] Philip Bump, “Kash Patel has an enemies list centered on grievance,” Washington Post, December 3, 2024, available at https://www.washingtonpost.com/politics/2024/12/03/patel-deep-state-trump-retribution/.
[7] U.S. Constitution, Article II, § 1 and § 3.
[8] Edwin Meese III, “The Dangerous Federalization of Crime,” The Hoover Digest, July 30, 1999, available at https://www.hoover.org/research/dangerous-federalization-crime.
[9] Judiciary Act of 1789 § 35, ch. 20, 1 Stat. 73, available at https://www.archives.gov/milestone-documents/federal-judiciary-act.
[10] Michael Ellis, “The Origins of the Elected Prosecutor,” The Yale Law Journal, Volume 121, 1528, 1539, April 2012, available at https://openyls.law.yale.edu/bitstream/handle/20.500.13051/10003/41_121YaleLJ1528_April2012_.pdf?sequence=2&isAllowed=y.
[11] Id.
[12] 272 U.S. 52 (1926).
[13] 591 U.S. 197 (2000).
[14] See Trump v. United States, 603 U.S. 593 (2024).
[15] Bruce Schulman, “The Surprising Legacy of Watergate in Today’s Politics,” Time, August 8, 2024, available at https://time.com/7008604/watergate-reforms-backfire/.
[16] Dahlia Lithwick and Jack Goldsmith, “Politics as Usual: Why the Justice Department Will Never Be Apolitical,” Slate, March 14, 2007, available at https://slate.com/news-and-politics/2007/03/why-the-justice-department-will-never-be-apolitical.html.
[17] “A bill to insure the separation of constitutional powers by establishing the Department of Justice as an independent establishment of the United States,” S.2803, 93rd Congress (1973) available at https://www.congress.gov/bill/93rd-congress/senate-bill/2803?s=1&r=39.
[18] Dahlia Lithwick and Jack Goldsmith, “Politics as Usual: Why the Justice Department Will Never Be Apolitical,” Slate, March 14, 2007, available at https://slate.com/news-and-politics/2007/03/why-the-justice-department-will-never-be-apolitical.html.
[19] Rebecca Cho, Louis Cholden-Brown, and Marcello Figueroa, “Toward an Independent Administration of Justice: Proposals to Insulate the Department of Justice from Improper Political Interference,” Fordham Law School, 2020, available at: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2098&context=faculty_scholarship.
[20] Removing Politics from the Administration of Justice: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary on S. 2803 and S. 2978, 93rd Cong. at 153 (1974), available at https://play.google.com/books/reader?id=haZhqw01aE0C&pg=GBS.PA62&hl=en.
[21] Id.
[22] Id. at 63.
[23] Jack Goldsmith, “Watergate-era Reforms 50 Years Later,” Harvard Law Today, June 8, 2022 available at https://hls.harvard.edu/today/watergate-era-reforms-50-years-later/.
[24] Jim Mokhiber, “A Brief History of the Independent Counsel Law,” PBS, May 1998, available at https://www.pbs.org/wgbh/pages/frontline/shows/counsel/office/history.html.
[25] Jack Goldsmith, “Watergate-era Reforms 50 Years Later,” Harvard Law Today, June 8, 2022 available at https://hls.harvard.edu/today/watergate-era-reforms-50-years-later/.
[26] Adrian Vermeule, “Morrison v. Olson Is Bad Law,” Lawfare, June 9, 2017, available at https://www.lawfaremedia.org/article/morrison-v-olson-bad-law.
[27] 487 U.S. 654 (1988).
[28] Id. at 695.
[29] United States Department of Justice, Justice Manual, § 9-27.220 (“Grounds for Commencing or Declining Prosecution”).
[30] Jack Goldsmith, “Watergate-era Reforms 50 Years Later,” Harvard Law Today, June 8, 2022 available at https://hls.harvard.edu/today/watergate-era-reforms-50-years-later/.
[31] United States Department of Justice, Justice Manual, § 1-8.100 (“Congressional and White House Relations”).
[32] United States Department of Justice, Justice Manual, § 1-8.600 (“Communication with the White House”).
[33] Id.
[34] Id.
[35] United States Department of Justice, Justice Manual, § 9-27.150 (“Non-Litigability”).
[36] United States Department of Justice, Justice Manual, § 9-27.110 (“Purpose”).
[37] Bruce Schulman, “The Surprising Legacy of Watergate in Today’s Politics,” Time, August 8, 2024, available at https://time.com/7008604/watergate-reforms-backfire/.
[38] Jack Goldsmith, “Watergate-era Reforms 50 Years Later,” Harvard Law Today, June 8, 2022 available at https://hls.harvard.edu/today/watergate-era-reforms-50-years-later/.
[39] Melissa Quinn, “2,000 ex-Justice Department employees call on Barr to resign over Roger Stone case” CBS News, February 18, 2020, available at https://www.cbsnews.com/news/1100-ex-justice-department-employees-call-on-william-barr-to-resign-over-roger-stone-case/.
[40] Trump v. United States, 603 U.S. 593, 597 (2024) (internal quotations omitted).
[41] Id.
[42] See National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012); see Griswold v. Connecticut, 381 U.S. 479 (1965).
[43] Trump v. United States, 603 U.S. 593, 609 (2024).
[44] Id.
[45] Jeffrey Clark, “The U.S. Justice Department Is Not Independent,” Center for Renewing America, May 17, 2023, available at https://americarenewing.com/issues/the-u-s-justice-department-is-not-independent/.
[46] See Rosemarie Zagarri and Holly Brewer, “Founding-Era History Doesn’t Support Trump’s Immunity Claim,” The Brennan Center, February 21, 2024, available at https://www.brennancenter.org/our-work/research-reports/founding-era-history-doesnt-support-trumps-immunity-claim.
[47] The Criminal Justice Team, “Restoring Integrity and Independence at the U.S. Justice Department,” Center for American Progress, August 13, 2020, available at https://www.americanprogress.org/article/restoring-integrity-independence-u-s-justice-department/.
[48] Office of Legal Counsel, “Scope of Congressional Oversight and Investigative Power With Respect to the Executive Branch,” March 22, 1985, available at https://www.justice.gov/olc/opinion/scope-congressional-oversight-and-investigative-power-respect-executive-branch.
[49] Supra note 48.
[50] Ian Ayres, Saikrishna Bangalore Prakash, “A Bipartisan Approach to Political Prosecutions,” Journal of Legal Analysis, Volume 16, Issue 1, 2024, Pages 140 -177, available at https://doi.org/10.1093/jla/laae006.
[51] Trump v. United States, 603 U.S. 593, 640 (2024).
[52] Merrick Garland, “Attorney General Merrick B. Garland Delivers Remarks on the First Anniversary of the Attack on the Capitol,” Department of Justice Office of Public Affairs, January 5, 2022, available at https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-first-anniversary-attack-capitol.
[53] Id.
[54] Jackie Calmes, “Merrick Garland’s Integrity Saved the DOJ only to doom it again,” The Los Angeles Times, January 12, 2025, available at https://www.latimes.com/opinion/story/2025-01-12/merrick-garland-jan-6-donald-trump-justice.
[55] United States Department of Justice, Justice Manual, § 1-8.600 (“Communication with the White House”).
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