The Unconstitutional Myth of DOJ Independence

The idea that the attorney general and the Department of Justice are independent from the president is a modern misconception with no basis in the Constitution.

This is clear just from Article II of the Constitution, and it is even clearer in Federalist Paper 76, which discusses the appointment of officers in the executive branch.

If we are ever going to put the genie of the unconstitutional fourth branch of government back into its bottle, we have to bust this myth. The administrative state, especially after the astonishing revolution that the New Deal era accomplished, is now strangling our republic.

Let’s start with just a few examples of how prevalent the myth is: The Biden administration’s DOJ claims that it is independent on its own website. Attorney General Merrick Garland vowed when he took office to restore the department’s independence. In another example, former Trump administration U.S. Attorney Geoffrey Berman lamented that he should have been independent not just of the president, but also of his DOJ superior two tiers above him, Attorney General Bill Barr. Were Berman to get his way, DOJ would not just be independent, it would be a balkanized set of 93-plus individual DOJ potentates ruling the nation.

The Washington Post occasionally speaks of the DOJ as having a “measure of independence,” recognizing that, since the attorney general reports to the president, perfect independence is impossible.

Legal academics, political scientists, and leftist pressure groups are the worst. They constantly proclaim the DOJ’s independence as a dogmatic element of their faith in a technocratic government set loose from the people.

But no Cabinet officer was ever intended to be an independent satrap invested with a sphere of authority beyond the president’s control. The executive branch of government is a unitary whole and the Constitution vests the president with all executive power. Not part of it. And not all of it, except for an unmentioned donut hole that the Justice Department occupies. DOJ can be independent of the president no more than the Department of Health and Human Services or the State Department.

I have recently written a paper that rebuts a range of the arguments offered to support the myth of DOJ independence. The claims of the proponents of independence are weak, and I urge you to consult that paper for the details. But suffice it to say that the arguments rest on “norms” and extra-legal guidance documents rather than on the text of the Constitution.

The idea of DOJ independence ultimately traces back to Woodrow Wilson’s time as a political science professor, as well as to former Harvard Law School Dean and New Deal warrior James Landis. These men were no fans of the Constitution as written. Wilson managed to become president even though he wrote that the United States had spent too much time building a constitution and too little time building an administrative state. Landis urged government by experts — something William F. Buckley famously rejected a few decades later as inferior to being governed by a group of names chosen at random from any American city’s phonebook. And, of course, all Americans should be skeptical of the administrative state after what Drs. Anthony Fauci and Deborah Birx put the country through in the name of protecting public health.

The misguided thinking of Wilson, Landis, and their modern acolytes like Rep. Jamie Raskin, who is now pushing Congress to declare a “National Day of Reason,” as well as the pitchmen on MSNBC, such as Ari Melber and Rachel Maddow, combined with a lack of education about the Framer’s Constitution, have all fed the mythos of DOJ as a freestanding monolith.

The center Right also adheres to some version of the DOJ independence fallacy. At a recent talk, in response to a question about DOJ independence, former Attorney General Barr said, “The attorney general is the figure who has the authority … the legal authority is vested in the attorney general and people in the department carried out on behalf of the attorney general.”

No, wrong. Article II of the Constitution vests the president with the Take Care Clause Power, not the attorney general.

And former George W. Bush administration official Jack Goldsmith, once head of DOJ’s Office of Legal Policy, flacks hard for DOJ independence as part of DOJ and FBI “cultural self-understandings,” even though he admits that this is “squishy and possibly even dangerous” because “it is not always easy to tell whether DOJ is acting on the basis of the rule of law or some self-serving bureaucratic imperative.” 

Even President Donald Trump’s first White House counsel, Don McGahn, just one week after Trump’s inauguration, put in place a White House contacts memo unmistakably animated by the extraconstitutional idea of DOJ independence. In that way, even McGahn attempted to raise a host of process hurdles to the constitutional reality that the president should exercise direct supervision of his own Justice Department appointees. This is flatly inconsistent with the Constitution’s demand that the president (not an attorney general) “take Care that the Laws be faithfully executed.”

Whether as a matter of high theory or as a matter of practical constitutional application, the U.S. Department of Justice is not independent. Were it to become an “independent agency,” as progressives and the radical Left argued for in the wake of Watergate, the Republic may become so severely damaged that it may not survive even a few presidential cycles past the point when DOJ was converted into such an entity.

It is vital for us to come together to restore the full, unadulterated Constitution. The attorney general is not a special Cabinet member who is “more equal” than his fellows.

Jeffrey Bossert Clark is Senior Fellow and Director of Litigation at the Center for Renewing America.

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