Trump is free to decide who is investigated by the Justice Department – ​​including enemies

WASHINGTON— Before he was re-elected, President Trump openly threatened to use – or abuse – his power by ordering federal prosecutors to bring criminal cases against those he considers enemies.

There is little in the law to stop him.

That’s because the Supreme Court has made clear that the Constitution gives the president full authority over how to enforce federal law.

Since the Watergate scandal of the early 1970s, the Justice Department has tried to separate law enforcement from politics and keep the White House at arm’s length.

But that separation is a matter of department policy, not the law.

“It is the norm and custom. It is in the U.S. attorney’s manual,” said Washington attorney Stuart Gerson, a former acting U.S. attorney general. “But according to the theory of unitary executive power, it is not illegal for the president to intervene in individual cases. It’s just a terrible idea.”

The late Justice Antonin Scalia popularized the theory of unitary executive power and dissented in 1988 when the court upheld the independent counsels established by Congress.

Scalia believed that the Constitution placed all executive power in the hands of the president, and that neither Congress nor the courts could interfere.

That position was echoed by the Supreme Court in July when the 6-3 majority said Trump and other presidents are generally immune from criminal prosecution for abusing their official power.

Chief Justice John G. Roberts Jr. mentioned law enforcement and the Department of Justice.

“Decision-making in matters of investigation and prosecution is the special prerogative of the executive branch, and the Constitution vests full executive power in the president,” he said. wrote in Trump vs. the United States.

He said that “the president occupies a unique position in the constitutional system, the only person who single-handedly constitutes a branch of government.”

As head of the executive branch, the president has “exclusive authority and absolute discretion to decide which crimes to investigate and prosecute,” he stated.

Even if Trump had lost the election, that opinion could have shielded the former president from much of the ongoing criminal case over his alleged scheme to overturn his loss in the 2020 election.

Now the court is giving him a blank check for a second term. He would be largely free to pursue his enemies using the powers of federal investigators and prosecutors.

During campaign rallies and social media posts, Trump threatened to go after his political enemies if he returned to the White House.

Last year, after being indicted by the Biden administration’s special counsel, Trump said he would appoint “a real special prosecutor to go after the most corrupt president in American history: “Joe Biden and the entire Biden crime family .”

He said Vice President Kamala Harris should be impeached and prosecuted. He said former Republican Wyoming Rep. Liz Cheney could be charged with treason and that critics of the Supreme Court “should be put in jail.”

It does not mean that Trump will carry out his threats. Some of his aides and advisers say Trump has been the victim of “weaponized” prosecutions by Democrats, and that he has no intention of waging a Justice Department revenge campaign.

“President Trump will not use the DOJ for political purposes, i.e., he will go after individuals simply because they are political opponents,” Mark Paoletta, a Washington attorney and longtime friend of Judge Clarence Thomas, wrote in a post on social media.

Paoletta, who served in Trump’s first term, has been mentioned as a candidate for attorney general.

He cited the court’s ruling in July, in which the president’s broad power to control the Justice Department includes intervening in individual cases.

“The president has a duty to oversee the types of cases DOJ should focus on and can intervene to alert DOJ to specific cases,” he said.

Legal experts see danger in politically driven investigations.

“There is reason for alarm. The president could send the DOJ a list of people he wants investigated,” said Peter Shane, a law professor at New York University. “Trump would think he has the right to do that. And his advisers will tell him he has a constitutional right to do this.”

Prosecutions require proof of a criminal offense. And judges can bring charges that don’t involve an actual crime.

But Shane said the danger isn’t so much a conviction or a trial. It is the research itself.”

Veteran Washington attorney Michael Bromwich agreed. “This will scare people. It is a very effective scare tactic,” he said.

He knows it from his own experience. He represented Andrew McCabe, the former deputy director of the FBI who was fired by Trump and subjected to a lengthy criminal investigation.

“He was chased because Trump didn’t like him. But ultimately a grand jury would not indict him,” Bromwich said.

Bromwich, a former federal prosecutor and inspector general at the Justice Department, said Trump’s second term will “test the mettle” of prosecutors and judges.

“It’s part of the culture of the Department of Justice,” he said. “You take an oath to defend the Constitution, and it is common knowledge that you prosecute cases based on the facts and the law, and not for partisan or political reasons.”

He said Justice Department lawyers will undergo a test of their oath.

“Are they pursuing something because of the president’s personal grievances?” he said. ‘Are they ignoring their oath? And if they say no, will they be fired? They will test the mettle of prosecutors across the Justice Department.”