//  8/29/17  //  In-Depth Analysis

So it came to pass. Friday night, President Trump pardoned Joe Arpaio, making good on his Tuesday night tease in Phoenix. For reasons I discussed in an op-ed last week (and that others provided here, here, here, here, and here), the pardon was a major blow to efforts to hold law enforcement officials accountable for unconstitutional racial profiling and to maintain a system of robust checks and balances.

Then we learned that the president was simply doing through the pardon power what he might have preferred to do through the Justice Department. The Washington Post has reported that Trump asked Attorney General Jeff Sessions in the spring whether he could simply drop the Arpaio prosecution.

This is no minor revelation. It uncovers a major breach of the longstanding norm that the White House is not to try to influence DOJ’s prosecutive decisions.

Importance of the Wall Between DOJ and the White House

In the wake of Watergate and the Saturday Night Massacre, Jimmy Carter sought to strengthen the independence of the Justice Department. In a 1978 speech, his Attorney General Griffin Bell announced steps, including limitations on communications between the White House and DOJ, to ensure that enforcement decisions in individual cases (as opposed to general enforcement priorities) were not “the products of favor, or pressure, or politics.” Carter’s second Attorney General, Benjamin Civiletti, set out the limitations in a memo that became known as the White House Contacts Policy. It has been reiterated repeatedly, including under Attorney General Michael Mukasey in 2007 and under Attorney General Eric Holder in 2009, and it remains in place today.  (See this memorandum from United to Protect Democracy for more information.)

The written Contacts Policy is just one means of preserving DOJ’s independence. There is an even stronger separation when it comes to criminal cases outside of the national security context. Across Republican and Democratic administrations, attorneys who have served in the White House Counsel’s Office and DOJ’s leadership offices have scrupulously observed what they call “the wall” between DOJ and the White House. The wall means that neither the president nor any of his staff are to seek to influence individual prosecutive judgments. (This is the governing philosophy for civil enforcement cases, too, but the concerns are heightened in the criminal context.)

This practice is not required by law or regulation. Rather, it is an institutional norm, a tradition central to the integrity of the Justice Department.

Because even the appearance of influence could shake the public’s confidence that the criminal law is being enforced in an impartial, nonpartisan, fact-bound way, DOJ officials historically have been vigilant about keeping the White House at a distance. Hence, Eric Holder’s incredulous tweet after the Washington Post story: “Number of times over six years that President Obama called and asked me to think about dropping a case: ZERO.” Only with that kind of independence and reputational integrity could the Department indict a sitting Republican governor (Bob McDonnell of Virginia in 2014) and a sitting Democratic senator (Bob Menendez of New Jersey in 2015) and fend off accusations that it had acted politically.

Some might balk at the legitimacy of limiting the president’s influence over criminal cases. After all, under a version of the Unitary Executive theory, all the executive power vests in the president himself. The Framers must have intended the president retain control over federal law enforcement decisions, right?

Wrong. Legal scholars Harold Krent and Lawrence Lessig and Cass Sunstein have demonstrated that historically the president did not control the prosecutive power. In the Judiciary Act of 1789, the Framers created “District Attorneys” who prosecuted cases in the federal district courts without supervision by the president. In 1797, Congress created the Office of the Comptroller within the Treasury Department and empowered it to prosecute cases independent of the president. To be sure, if the president is unhappy with the performance of the Attorney General or any other political appointee, he can remove them. That would be a public move that the American people could scrutinize. But there’s no inconsistency between our Constitution and the norm that the president should not weigh in on specific law enforcement decisions.

It’s a good thing. The president is not just the leader of the country. He’s also the head of his political party and may himself be a candidate in the future. In fact, Trump filed to run for reelection on his very first day in office, and he has been actively campaigning ever since.

Imagine the president ordered DOJ to bring criminal charges against a political rival, despite the absence of evidence. Or suppose he ordered DOJ to stand down against a political ally who had violated the law.

That kind of conduct is a hallmark of autocracy. Think of the former Soviet Union, where Stalin’s prosecutor Andrei Vyshinsky notoriously used trumped up criminal prosecutions to destroy the regime’s political opponents. Or consider any number of examples from the modern world—Russia, Ukraine, Zimbabwe, Egypt, Iran, or Azerbaijan. That’s not a list we want to be on. To guard against that risk, in the United States the president does not get a say in who does and does not get prosecuted.

Trump’s Lack of Respect for the Wall

This is why the Washington Post revelation is so troubling. By asking if DOJ could drop the charges against Arpaio, a political ally, Trump broke through the wall.

It’s not the first time Trump has breached the norm that federal criminal enforcement must steer well clear of political influence. During the second presidential debate in October, Trump told Hillary Clinton “you’d be in jail” if he were president, despite the FBI’s conclusion that “no reasonable prosecutor would bring a case” against her. While some were titillated by the chants of “lock her up!” at Trump’s campaign rallies, we all should have been terrified.

Then, shortly after taking office, Trump attempted to persuade then-Director James Comey to back off his investigation of former National Security Advisor Mike Flynn. After clearing the room on February 14, the president told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go.” Comey gave the president nothing, and the investigation proceeded. Trump later fired Comey, eventually admitting he did it because of “this Russia thing.”

Seeking to influence prosecutive decisions to protect a political ally—as Trump did with respect to Flynn and Arpaio—is potentially even more dangerous than doing so to punish a political rival.  This is because it creates opportunities for corrupt quid pro quos.

The danger is pressing at the moment. The FBI continues to investigate possible collusion between the Trump campaign and Russia under Special Counsel Robert Mueller. Several people from Trump’s orbit, including Flynn and former campaign manager Paul Manafort, have possible criminal exposure. As a result, they have an incentive to cooperate with Mueller and share information that inculpates others—perhaps including the president’s family members or the president himself.

Note that the pardon power can be used in the same way. Arpaio was an early, ardent, and outspoken supporter of Trump’s candidacy. The president rewarded that loyalty with a pardon before Arpaio had even been sentenced, let alone exhausted his appeals or served a day behind bars. The Arpaio pardon sends a clear signal to Flynn, Manafort, and anyone else who may be in a position to incriminate the president or those in his inner circle: stand by the president, and he’ll stand by you.

The Danger of Downplaying the President’s Actions

Some have downplayed Trump’s behavior and offered excuses for his transgressions. They say he is new to government, he does not understand the bureaucracy, he is unfamiliar with federal law enforcement. Such pleas are running thin, as the recidivist nature of his conduct is coming into focus. Taken together, Trump’s threat to prosecute Clinton, his attempt to influence Comey, and his conversation with Sessions about Arpaio suggest a person who believes he should at least have input into prosecutorial decisions. It does not look like ignorance anymore. It looks like a philosophy.

Others argue that Trump’s inquiry into whether DOJ could drop the case was harmless. He was just asking about his options—having a “natural . . . discussion with administration lawyers about legal matters,” explained Press Secretary Sarah Huckabee Sanders—and at any rate, Sessions told the president it would be inappropriate to abandon the case.

A case-specific inquiry is different, however, when you serve at the pleasure of the person doing the asking.  Just as an expression of presidential “hope” to the FBI Director can be a direction or a threat.

And recall that the Arpaio case had already been publicly filed and was pending trial. The case could not have been dropped quietly or without raising hard questions about the White House’s role. What about the charges that never get filed, or worse, the investigations that never proceed because the president does not want them to? How would the public even find out?

It’s also possible that irreversible damage has been done. Given the president’s pattern of inserting himself into cases, and his public castigation of his own Attorney General, DOJ may already be internalizing the need to consider what the president would want in future cases.

These are all reasons the president should never seek to influence the Justice Department on a specific criminal matter.  

Conclusion

Which brings me to a final point about a consistent theme that has emerged in Trump’s presidency: the erosion of norms.

Whether in his inability to unequivocally reject overt racism, his repeated personal attacks against federal judges, or his refusal to release his tax returns and divest from his businesses rather than profit from the presidency, Donald Trump is grinding away norms crucial to public confidence in government.

Every time this conduct is met with a shrug, our democracy suffers. That is why it’s a mistake to view Trump’s inquiry to DOJ over the Arpaio case as harmless. To the contrary, it was a clear breach of protocol designed to ensure impartiality in the exercise of the federal government’s awesome prosecution power. No person committed to the fair administration of justice should take it lightly. 


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