Former Acting Attorney General Sally Yates, an Obama holdover, recently authored one of the most pernicious columns within memory in the New York Times. Her column was titled, “Protect the Justice Department From President Trump.” Yates argued, in essence, that there exists an Executive Branch that is independent of, and superior to, the President–at least as long as that Executive Branch is staffed pretty much exclusively by Democrats. This is, of course, a boldly unconstitutional theory.
As I have pointed out multiple times, there is nothing complicated about the constitutional law on presidential control of the Justice Department. Article II, Section 1 of the Constitution places all of the executive power of the federal government in the President: “The executive power shall be vested in a President of the United States of America.” The Justice Department is an executive agency, and therefore reports to the President in every respect. That of course does not mean that it is a good idea for the President to get personally involved in day-to-day prosecutorial decisions; but he is perfectly entitled to do so if he wants. And he certainly has final say on all policies of the Department.
Yates has a different view. Here are a few key quotes from her op-ed:
The president is attempting to dismantle the rule of law, destroy the time-honored independence of the Justice Department, and undermine the career men and women who are devoted to seeking justice day in and day out, regardless of which political party is in power. . . . [Ed.: When liberals refer to the “rule of law,” they nearly always mean rule by liberal lawyers, having no reference to any actual laws.]
The Justice Department is not just another federal agency. It is charged with fulfilling our country’s promise of equal and impartial justice for all. As an agency with the authority to deprive citizens of their liberty, its investigations and prosecutions must be conducted free from any political interference or influence, and decisions must be made based solely on the facts and the law. To fulfill this weighty responsibility, past administrations, both Democratic and Republican, have jealously guarded a strict separation between the Justice Department and the White House when it comes to investigations and prosecutions. While there may be interaction on broad policies, any White House involvement in cases or investigations, including whom or what to investigate, has been flatly forbidden.
Yates doesn’t trouble herself to give us a citation of something in the Constitution that supports her position. Nor does Yates inform us of the origin of what she calls the “time honored” “strict separation between the Justice Department and the White House” that has supposedly been followed by “past administrations, both Democratic and Republican.” … If we’re going to talk about “dismantl[ing] the rule of law,” how about the rule that says that every four years the people get to elect a new guy, with policies different from the prior guy, and the new guy gets to implement his policies?
This is the heart of the matter, of course. Yates argues for a permanent bureaucracy in Washington that is impervious to the wishes of the voters, who may occasionally be so imprudent as to elect a Republican president. In Yates’s view, that must not be an obstacle to the liberal policies of the Justice Department or, by analogy, any of the dozens of other federal agencies that are manned nearly exclusively by liberal Democrats.
The permanent staff of the Department of Justice, which Yates wants to be independent of, and superior to, any president who is actually elected by American voters, is relentlessly left-wing. The Contrarian documents this in great detail at the link; this is just a sample:
Just in case you have the exceedingly naive impression that the lawyers at the Department of Justice really are neutral and apolitical, and just “seeking justice,” perhaps it is time for a brief history lesson focusing on the years of the Obama administration. Here goes:
* First, Jonathan Swan at The Hill on October 26, 2016, helpfully did a comprehensive analysis of political contributions made by bureaucrats in the various federal agencies in the 2016 election cycle. Here’s the result for the Justice Department: “Employees of the Department of Justice, which investigated Clinton’s use of a private email server while she was secretary of State, gave Clinton 97 percent of their donations. Trump received $8,756 from DOJ employees compared with $286,797 for Clinton.”
The administrative state is by far the greatest contemporary threat to the liberty of Americans. The appalling Sally Yates urges that the Constitution be left in the dust, and that unelected bureaucrats be elevated above the president whom they ostensibly serve. It is hard to imagine a theory more at odds with our Constitution or our political traditions.