Attorney General Todd Blanche made headlines Sunday for stating the obvious: The Justice Department is part of the Trump administration. That means the president has a say in what it does.
“Can you pledge that the Justice Department will always act independently of the White House?” NBC News host Kristen Welker asked Blanche on “Meet the Press.”
The recently confirmed attorney general replied: “Well, there’s a big difference between saying we will always do our job, and investigate any case and act independently of the White House. No, I’m not going to pledge that. And no attorney general should ever pledge that.”
That this exchange was a minor news event calls for a constitutional refresher. The president is required to “take care that the laws be faithfully executed.” The Justice Department is the agency Congress created to help the president enforce federal laws.
The president appoints the attorney general and can fire him or her at will, just as he can any other Cabinet member. The idea of DOJ “independence” gained popularity in Washington after the Watergate abuses of the 1970s. President Jimmy Carter proposed a law to insulate the attorney general from presidential removal, but his own Office of Legal Counsel said that would likely be unconstitutional.
To the extent that presidents and attorneys general keep their distance, it is out of respect for a well-intentioned custom. Even the strongest advocates of independence don’t doubt that the president can and should set certain goals for the department. That includes political decisions such as how aggressively to pursue antitrust cases, or seek the death penalty, or penalize college campuses for incidents of antisemitism.
Nor would it even be desirable for the Justice Department to be shielded from the democratic process like federal courts are. Prosecutors can misuse their tremendous power, for political or other reasons, and they need to be accountable to someone. In a democracy with a separation of powers, that means the president and his appointees.
To recognize that the Justice Department is subordinate to the White House is not to excuse abuses. On the contrary, recognizing that the attorney general is unavoidably a political figure and not an irreproachable technocrat gives the public an avenue to criticize his judgments.
Blanche’s Justice Department (he was initially deputy attorney general) has launched a series of flimsy investigations and prosecutions of the president’s purported enemies, most of which have failed in court. Vindictive prosecution is despicable whether the prosecutors responsible claim to be acting “independently” or not. There are ways the White House can influence the Justice Department short of a direct order — see the 2022 New York Times leak that President Joe Biden was frustrated with Attorney General Merrick Garland for not (yet) prosecuting Trump.
Ideally, senior officials including the attorney general have enough standing to tell the president “no,” and are willing to resign if they are overridden on a matter of significant importance. William P. Barr, who was attorney general in Trump’s first term, wrote in his memoir that he told the president before his nomination that he “could not tolerate political interference in criminal cases” — as opposed to civil cases — “and would take the job only based on that understanding.”
That’s a good line for attorneys general to draw, if they have the political leverage to do so. Blanche probably does not. When Welker asked him, “Should the president have a voice in individual prosecution decisions at all?,” he replied ambiguously: “Every American has a voice in prosecutions. … And so whether President Trump should have a, quote, ‘voice,’ it depends.”
Blanche was in audition mode for attorney general for months. One of his selling points to skeptical senators was that if he was confirmed, he would have more ability to push back on bad ideas emanating from the White House. Now he has made it to the top of the department, and Trump is still his boss. His legacy will be defined in part by how willing an instrument he will be in the White House’s revenge campaign.
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