The regressive left, blinded by their sheer, unadorned hatred of President Trump, is now in outrage overdrive that President Trump is intervening or “interfering” with the ability of William Barr, the Attorney General of the United States, to do his job. Regressives howl about Trump overstepping his bounds, and how he must allow the DOJ to do its job with no input from him.
This again betrays the abysmal constitutional ignorance - there’s no other word for it - of regressives. They have yet to meet even a portion of the Constitution they do not insist on either ignoring or rewriting. The kerfuffle over Barr is a case in point.
Trump said this week, “I’m allowed to be totally involved. I’m actually, I guess, the chief law enforcement officer of the country.” This caused jaws on the left to drop to their knees and sent smoke billowing from their ears.
More than 2,000 former Justice Department employees signed a public letter this week objecting in particular to Trump’s public intervention in the case of Roger Stone, who is going to get prison time for lying to investigators, while Andrew McCabe, who did exactly the same if not worse, is drawing a big fat salary from CNN. Either both of them belong behind bars or neither of them does. This is what has fired Trump’s ire.
When Trump says he is the chief law enforcement officer of the United States, he is exactly right because the Constitution says he is. The left can huff and puff and try to blow Trump’s White House down, but until the Constitution is amended Trump has the constitutional authority to tell William Barr what to do all day long.
According to that pesky thing called the Constitution, the president is not just the head of the executive branch, he IS the executive branch. “The executive power shall be vested in a President of the United States of America” (Article II). Just as Congress is vested with every last bit of legislative power, so every bit of executive power is vested in the president.
Although regressives want to pretend - when it suits them - that the DOJ is completely independent of the president, as if it were an independent branch of government, it is not. It is entirely under the authority of the president of the United States.
He may certainly delegate portions of his power to federal agencies to help him fulfill his duties, but there should be no misunderstanding: all the executive powers of the federal government belong to the president. He is a one-man branch of government. As law professor Josh Blackman writes, this power extends to the “decision whether and how to prosecute someone.” That power “ultimately belongs to the president.” There is nothing remotely un-American nor unconstitutional about a president exercising that power, “not even close.”
So if President Trump issues a directive, even a politically unwise one, to the Attorney General, Bill Barr has two choices: comply or resign. There is no third option. There is no “wall of separation” between the President and the DOJ.
These kinds of presidential directives are issued all the time. For instance, the Obama administration de-prioritized certain types of marijuana prosecutions in 2009. When Trump took office, he promptly re-prioritized them. That’s how these things work.
President George H.W. Bush ordered the department to investigate police in the wake of the 1992 riots in Los Angeles. This was after a jury acquitted four police officers who were charged with using excessive force in the arrest of Rodney King, who was beaten during the encounter the year before.
In the administration of Thomas Jefferson, Aaron Burr was prosecuted for treason, accused on precariously thin evidence of trying to establish an independent nation in what today is Louisiana. The basis for the prosecution was dubious, and Jefferson withheld certain documents that could have proved Burr’s innocence.
But what is instructive is how active Jefferson was in the prosecution of Burr. He frequently wrote to the prosecutor, George Hay, with quite explicit instructions as to how he should manage the case. He even, quite correctly in my view, directed Hay to “denounce” the Marbury v. Madison opinion because it was “not law.” It couldn’t have been law, because the Supreme Court is specifically prohibited from enacting legislation, since “all legislative powers...shall be vested in Congress” (Article I).
Burr was acquitted on the charge of felony treason because the evidence was too weak, and so Jefferson ordered Hay to immediately prosecute Burr for a related misdemeanor. Hay complied, but Burr got off again, and that was the end of the matter, although Burr’s reputation, what was left of it, was entirely shredded. Jefferson’s interventions could be considered “intemperate,” as Trump’s Tweets are today, but there is no question that Jefferson’s intervention was permitted by the Constitution.
Barr has flatly stated that Trump has not asked him to do anything in any criminal matter. Thus, Trump’s intervention falls far short of Jefferson’s direct efforts to hang Burr from the nearest tree.
The president is an American and has the same right to freedom of speech that you and I possess. He didn’t forfeit that right when was sworn in, and is well within his constitutional rights to express his opinion.
The ultimate jury in Trump’s case consists of the American people. They will have the opportunity in November to completely remove him from the board if they think he has gone too far. But let’s not get carried away and accuse him of violating the Constitution when he has done no such thing.
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