Marty Lederman on the Unitary Executive
Michael Ramsey

In a story published this weekend in the New York Times, Michael Schmidt writes about President Trump's frustrations in April 2018 when Attorney General Jeff Sessions refused to prosecute Hillary Clinton and Jim Comey (presumably because there was no evidentiary basis for such prosecutions).  In an Oval Office meeting, Trump "told startled aides" that if Sessions refused to do so, Trump would "prosecute [Clinton and Comey] himself."

Hoping to head off such an unprecedented and indefensible presidential intervention, White House Counsel Don McGahn told Trump he would prepare a memorandum "explaining to you what the law is and how it works, and I’ll give that memo to you and you can decide what you want to do."  Schmidt reports that McGahn eventually gave Trump a "polished" version of the memo, but it appears that Schmidt has only seen two earlier drafts of it, excerpts from which the Times has now published.  

 

The memos are interesting for several reasons.  What most struck me, however, was just how obsolete those memos might now be, just six years later, because of intervening legal developments–namely, two radical opinions of the Supreme Court, both written by Chief Justice John Roberts.  Those opinions, if taken at face value, appear to confirm Donald Trump's view–rejected by McGahn–not only that the President is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions, and not only that the President himself could perform those functions, but also that Congress may not prohibit the President from directing DOJ officials to abuse their statutory authorities for unlawful ends. …

 

I think it's not so "radical" to suppose that the President, who "shall be vested" with the executive power, "is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions." Necessarily the President must have this power, or the President is not vested with the executive power: criminal law enforcement is the core of executive power.  This is the central proposition of Justice Scalia's dissent in Morrison v. Olson. I also think it is only marginally more "radical" (and still not very radical) to suppose that "the President himself could perform those functions." If there were no DOJ or Attorney General, of course the President could perform these functions.  The question is whether Congress can force the President to work through the DOJ.  To that, I say maybe, so long as it doesn't materially diminish the President's control of law execution. At minimum that in turns means that the first proposition — that "the President is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions" — must be true.  And further it would seem that if the DOJ were unable to prosecute (due for example to vacant offices) the President could (and indeed under the take care clause would be obligated to) undertake the prosecution directly.

 

As to the third proposition — that "Congress may not prohibit the President from directing DOJ officials to abuse their statutory authorities for unlawful ends," it seems to me that this is probably not constitutionally precluded, but I'm not entirely sure what it means.  "Abuse their statutory authorities" and "unlawful ends" could be interpreted in various ways, and I'd want to know for sure what the author meant by them before I agreed to the proposition. At minimum, it seems to me that Congress could prohibit the President from directing DOJ officials to act contrary to the Constitution.  It's not clear to me, though, that the Court would take a different view.  Nothing in the conventional originalist version of the unitary executive would require it to.