At Volokh Conspiracy, Josh Blackman: New Op-Ed in the Washington Post: "The Constitution does not place a wall between the president and the Justice Department". From the introduction:
The Washington Post invited me to write an op-ed about President Trump, Attorney General Barr, Roger Stone's sentencing. It is titled, "Trump has the constitutional power to intervene in Roger Stone's sentencing. The Constitution does not place a wall between the president and the Justice Department."
Here is the introduction:
President Trump tweeted last week that he has the "legal right" to tell Attorney General William P. Barr how to handle Roger Stone's prosecution — bringing the fury of the legal establishment down on him. Federal prosecutors had recommended a seven-to-nine-year sentence for Stone, who was convicted of perjury and witness tampering. Trump tweeted that the recommendation was "horrible and very unfair." Subsequently, the Justice Department dropped the recommendation.
More than 2,000 former Justice Department employees promptly declared in an open letter that they "condemn" Trump and Barr's "interference in the fair administration of justice." Donald Ayer, who served as deputy attorney general under President George H.W. Bush, wrote in the Atlantic magazine of Barr's complicity in the sentencing shift: "Given our national faith and trust in a rule of law no one can subvert, it is not too strong to say that Bill Barr is un-American."
Un-American? Absolutely not. Unconstitutional? Not even close. Unwise? Yes. As a policy matter, the president should stay out of sentencing decisions, especially those involving his friends. But the president is correct that he has the legal authority to intervene in the case. The Constitution does not create a wall of separation between the president and the Justice Department. To the contrary, the Constitution vests the "executive power" in the president. And the decision whether and how to prosecute someone ultimately belongs to the president.
Agreed. I made similar points here, though Professor Blackman is as always more eloquent and insightful.
RELATED: From Glenn Reynolds at Instapundit:
Also, the idea that a president shouldn’t be involved in these decisions is anti-constitutional. The executive power — all of it — is vested in the president by Article II of the Constitution. The rules of custom and etiquette that have grown up to the effect that presidents should stay at arms length may be a good idea — or not — but they have nothing to do with the Constitution and to the extent they purport to limit the president are actually in contradiction to the constitution.
Correct. The President is the chief law enforcement officer of the U.S. government in the same sense that he is the commander-in-chief of the U.S. armed forces. He is constitutionally the ultimate authority (although it's usually best if he leaves operational matters to the attorney general and the joint chiefs, once they have his confidence).
Posted at 6:09 AM