By Josh Blackman / Special to The Washington Post
President Trump tweeted last week that he has the “legal right” to tell Attorney General William 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.
Article II of the Constitution establishes a single president, and all of the executive powers belong to that elected official. As a practical matter, the president delegates some of those powers to the Justice Department; specifically, prosecutorial discretion for criminal matters. But if the president chooses to intervene, the attorney general has two options: comply or resign. So far as we know, Trump has not formally intervened in the Stone case. (The president’s tweets were not an order, and Barr says he did not take them as such.) And to date, Barr has maintained his autonomy. Indeed, Barr pushed back against Trump in an interview with ABC News. The tweets, Barr said, were “disruptive” and “undercut” his authority. That was a good statement. Presidents should not micromanage criminal prosecutions. Doing so creates the appearance that the president wields the official powers to serve his personal whims. But there is nothing constitutionally improper about such an intervention.
During her brief tenure as acting attorney general under Trump, Sally Yates — a holdover from the Obama administration — tried to maintain the kind of rigid separation between the Justice Department and the White House that Trump’s critics endorse today. She refused to defend the president’s travel ban and also refused to resign. Trump was right to swiftly remove her, after a mere 10 days of service. In 2017, she explained her theories about the limits of executive-branch power, in USA Today. “The rule of law,” she wrote, “requires a strict separation between the Justice Department and the White House on criminal cases and investigations.” Versions of that argument, which get bandied about all too frequently, distort public understanding of the executive branch’s structure.
A cursory glance at political history shows there has never been a strict separation between the Justice Department and the White House: Political appointees routinely alter the agency’s criminal agenda on a quadrennial basis. In 2009, to give just one example, the Obama administration deprioritized certain types of marijuana prosecutions. In 2018, the Trump administration reversed that policy. The Obama administration also instructed line prosecutors to avoid seeking mandatory minimum sentences for certain drug offenses. The Trump administration reversed that policy, as well. This ebb and flow happens with every shift of administration.
But there is a more focused criticism that deserves attention. Those 2,000-plus former Justice Department employees wrote that “it is wrong for the President to interfere in specific enforcement matters, either to punish his opponents or to help his friends.” In other words, they grant that it is permissible for the executive branch to set broad policies but impermissible for the White House to intervene in specific cases; particularly prosecutions of the president’s allies (or foes).
At least since Watergate, a norm has developed in which the president stays out of individual prosecutorial decisions. A bipartisan consensus had emerged that President Richard M. Nixon improperly politicized the department for his personal ends. I hedge slightly, because it’s impossible to be sure this norm has been strictly adhered to. If such interventions occurred, they would not be made public.
Trump’s tweets and Barr’s subsequent comments are out in the open. We do not know whether past presidents have privately offered suggestions to the Justice Department, however subtle. These sorts of privileged communiques would be kept in close confidence and would never be shared with rank-and-file employees. But there is one prominent example from early in the republic that illustrates how a president can administer criminal prosecutions.
In 1807, the Jefferson administration prosecuted Aaron Burr, alleging treason. The former vice president was accused of trying to establish an independent nation in the Louisiana territory. The basis for the prosecution was dubious, and President Thomas Jefferson withheld certain documents that could have proved Burr’s innocence.
But more relevant, for our purposes, is the close interest Jefferson took in the case. Throughout the trial, Jefferson frequently wrote to George Hay, the federal prosecutor, with precise instructions on how to manage the case.
In one letter, Jefferson wrote that the “prosecution of Burr had begun under very inauspicious symptoms by the challenging & rejecting two members of the grand jury.” Jefferson worried that the remaining members would not indict Burr. Jefferson had a preordained result in mind and was unwilling to let the process settle the question of Burr’s guilt.
In another letter, Jefferson urged Hay to “denounce” the case of Marbury v. Madison because it was “not law.” Chief Justice John Marshall, who wrote Marbury, also presided over Burr’s trial. Hay acknowledged the directive but ignored it. Toward the end of the felony trial, Marshall issued a ruling favorable to Burr. Jefferson was incensed. He wanted the record of the case to be preserved to form the basis of articles of impeachment against the chief justice. Despite his bluster, there is no record that Jefferson actually sought to impeach Marshall based on the Burr case. Jefferson’s intemperate letters are in this respect not that different from Trump’s ephemeral tweets.
Eventually, Burr was acquitted of the felony charge. Immediately thereafter, Jefferson wrote Hay a letter, joined by then-Secretary of State James Madison, urging that he be prosecuted for a related misdemeanor. Hay followed Jefferson’s order, but again Burr was acquitted.
Let’s assume that Trump in fact ordered Barr to recommend a specific sentence for Stone. Such meddling would pale in comparison with Jefferson’s micromanagement of a high-profile, politically charged treason prosecution.
I concede that Trump, given his constitutional authority, can punish his enemies or reward his friends. Critics are right to be worried. If we were redrafting the Constitution from scratch, perhaps we would decide such broad powers should not all be vested in the same person. In my home state of Texas, for example, the position of attorney general is separate from the governor; a model that has some virtue over our federal system.
Ultimately, Trump would have one final card to play. If he disagrees with the sentence, he can issue a pardon or commutation; as we’ve just seen him do in the cases of former Illinois governor Rod Blagojevich, former New York police commissioner Bernie Kerik and the financier Michael Milken. Such an intervention would exact a political price but would inarguably be within his constitutional authority. If Trump has the power to nullify a sentence after it has been imposed, he also has the far less significant power to inveigh against the severity of a sentence in advance.
Fortunately, presidents must wield their formidable power in this area publicly, in an open criminal proceeding before neutral federal judges. Courts retain the authority to dismiss vindictive prosecutions and to disregard crony recommendations. The judge in the Stone case ultimately will decide what sentence to impose and what weight, if any, to give the Justice Department’s recommendation. Still, the president has a voice and is well within his rights to express his opinion. Despite what you’re hearing from Trump’s critics right now, the rule of law will live to see another day.
Josh Blackman, a law professor at the South Texas College of Law Houston, is co-author of “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”