Who Will Decide Whether to Investigate Trump?

As with other personnel decisions, there has been a steady stream of reporting about President-elect Joe Biden’s search for a new attorney general. Names mentioned include former Acting Attorney General Sally Yates, California Attorney General Xavier Becerra, Democratic National Committee chair Tom Perez, outgoing Alabama Sen. Doug Jones, former Department of Justice official Lisa Monaco, former head of the Department of Homeland Security Jeh Johnson and former Massachusetts Gov. Deval Patrick.

Besides traditional considerations—such as the policy fit with the president, management experience, confirmability and demographics—Biden seems to have another, more singular requirement for his attorney general. The president-elect appears to want an attorney general who will decline to criminally investigate or prosecute Donald Trump and his close associates, and who will be credibly seen as having made that decision on his or her own, without direction from Biden. As the saying goes, personnel is policy.

The Department of Justice is an enormous organization with many and varied responsibilities, and the attorney general’s role is correspondingly broad. But Biden’s pick will confront one issue of surpassing importance: whether to criminally investigate and possibly charge Trump, members of his family, or close business or political associates. Relatedly, Biden must also decide who will be the ultimate decision-maker on any investigation or prosecution: the president himself or the attorney general.

Biden would be well within his legal rights, and within the norms of apolitical law enforcement, were he to directly instruct the attorney general not to investigate or prosecute Trump or close Trump associates. The Constitution vests the president with “the executive power,” and directs him or her to “faithfully execute the Office of President” and “take Care that the Laws be faithfully executed.” According to the Supreme Court, “[t]he Constitution requires that a President chosen by the entire nation oversee the execution of the laws.” As I have recently written in a co-authored historical study, the faithful execution duties require—among other things—that the president execute the laws diligently, honestly, impartially, and in good faith for the public good, and avoid self-dealing or other purely privately self-interested actions. These duties have from the beginning coexisted with a good measure of prosecutorial discretion in the president and his subordinates. For instance, as Susan Hennessey and Benjamin Wittes describe, both George Washington and Thomas Jefferson directed that federal prosecutions be dropped for public policy reasons.

Starting around the time of Watergate, and in response to the politicization of the Department of Justice, a set of norms crystallized about the proper roles of the president, the White House, the attorney general and other political leaders at the Justice Department, and career prosecutors and investigators. I attempted to summarize some of these norms as follows:

First, the politically-accountable head of the executive branch—the President—can and indeed should set out the broad parameters of legal and enforcement policy for DOJ prosecutors and law enforcement agencies … because ultimately the President is accountable for the faithful execution of the law. The Attorney General’s job involves such a large element of sensitive policy—in areas ranging from civil litigation against the government to federal prison administration to immigration to law enforcement priorities—that he or she is properly an at-will employee of the President, and hence responsive to the public will as well….

Partisan political considerations, personal vendettas or favoritism, financial gain, or self-protection or self-dealing should play no role in investigating or prosecuting cases….

Decisions about specific investigatory or prosecutorial steps in particular criminal cases are almost always best left to career officials operating free from political intervention, and supervised by political appointees based only on “law and merit” rather than improper considerations including “White House approval or influence.”

Regarding the president’s role, Hennessey and Wittes describe the norm that “presidents exercise policy control over the Justice Department, but they generally refrain from getting involved in specific investigative matters, which they leave to the appointees they select.” Similarly, Bob Bauer and Jack Goldsmith describe a post-Watergate “norm” “inhibit[ing] presidential involvement in … pending investigations.”

But sometimes it can be appropriate for presidents to weigh in on specific criminal investigations or prosecutions. For example, President Barack Obama directed that prosecutions of 10 deep-cover Russian sleeper agents be dropped in 2010 and the spies returned to Russia, as a part of a swap for four people detained by Russia whom the president wished to liberate. There the president’s constitutional and statutory prerogatives over national security and foreign affairs justified overriding the general norm against White House involvement in specific party enforcement decisions. Obama’s action seems consistent with his faithful execution duties, because reasons of state—not corrupt, self-dealing or other self-interested motives—were the apparent motivating factors. Hennessey and Wittes generalize this point, writing that occasionally “broad issues of presidential or national policy hinge on investigative matters,” and that White House involvement with Justice Department prosecution or investigation decisions can be appropriate in those instances.

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