“Does the Department of Justice serve the President or the United States?”
— Linden B.
Hi Linden,
To the extent that there is a conflict, it should be the United States. The Justice Department’s independence has been an important modern value in the post-Watergate era. But it’s an understatement to say that the current administration is testing that value.
Of course, the department isn’t entirely unrelated to the president. It’s not a coincidence that DOJ priorities can shift every four or eight years. In every administration, the president appoints DOJ officials — some of whom are subject to Senate confirmation — whose views are at least somewhat aligned with the president’s or else they wouldn’t be picked.
But the alignment between the DOJ and this White House is extreme. The lawyers leading the department are Trump’s personal attorneys from his criminal and impeachment cases; they now wield the awesome power of the federal government on his behalf. As Attorney General Pam Bondi put it: DOJ lawyers are “his lawyers.” One of the greatest independence tests is when presidents themselves face potential legal jeopardy. We have several data points on this subject over the years, including from Trump’s first term. But look even more recently to when Joe Biden was investigated related to classified documents. His attorney general, Merrick Garland, appointed a special counsel (a Trump-appointed U.S. attorney) for the matter. Announcing that appointment, Garland said it “underscores for the public the Department’s commitment to both independence and accountability in particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law.” Would Bondi do the same? The answer to that question is the same answer to the question of who this DOJ serves. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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