The Take Care Clause, Justice Department Independence, and White House Control
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Volume 121 Issue 2 Article 4 December 2018 The Take Care Clause, Justice Department Independence, and White House Control Andrew McCanse Wright New York University School of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the President/Executive Department Commons, and the United States History Commons Recommended Citation Andrew M. Wright, The Take Care Clause, Justice Department Independence, and White House Control, 121 W. Va. L. Rev. (2018). Available at: https://researchrepository.wvu.edu/wvlr/vol121/iss2/4 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Wright: The Take Care Clause, Justice Department Independence, and White THE TAKE CARE CLAUSE, JUSTICE DEPARTMENT INDEPENDENCE, AND WHITE HOUSE CONTROL Andrew McCanse Wright* ABSTRACT ..................................... ..... 355 I. INTRODUCTION ................................. ..... 356 II. WHITE HOUSE-DEPARTMENT OF JUSTICE RELATIONS IN TRUMP ADMINISTRATION YEAR ONE ........................ 359 A. Background: Investigations into Russian Election Interference and Hush Money Payments..................... 361 1. The Russia Investigation ................. ..... 361 2. The Hush Money Investigation............. ..... 362 B. White House Conduct Problem Areas ................ 363 1. White House Investigation Intervention ...... ...... 364 2. White House Contacts. ................... ..... 365 3. White House Control Over Department Personnel......... 368 4. White House Public Criticism of the Department........... 370 5. White House Investigation Targeting ....... ...... 371 6. White House Assessments of Guilt or Innocence........... 372 7. Misuse of Presidential Pardons and Classification Authority ................................. 375 8. Taking Stock of Problem Areas in Trump Administration Year Two .............. ........ 376 III. THE CHIEF EXECUTIVE, TAKE CARE CLAUSE & FEDERAL CRIMINAL INVESTIGATIONS .................. ............ 377 A. The Take Care Clause....................... 377 1. The Take Care Clause as Obligation ..... ......... 379 Research Scholar, New York University School of Law; Senior Fellow and Founding Editor, Just Security. I served in the Obama White House as Associate Counsel to President, the Clinton White House as Assistant Counsel to the Vice President, and in Congress as Staff Director of the Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform. I worked on a number of the matters, and operated under a number of the policies, referenced in this Article. However, I rely solely on information contained in the public domain. I am grateful to the University of Louisville Louis D. Brandeis School of Law, the University of South Dakota School of Law, Seattle University School of Law, the Southeastern Association of Law School (SEALS), and the Brennan Center for Justice at New York University School of Law for opportunities to present this paper. Caprice Roberts, Justin Walker, Richard Myers, Asha Rangappa, Val Vojdik, and Andy Siegel all offered comments and criticism that have improved my thinking about this topic. Katelyn Ashton and Erica Drew provided rock solid research support throughout the drafting process. For so many reasons, I am indebted to them. 353 Disseminated by The Research Repository @ WVU, 2018 1 West Virginia Law Review, Vol. 121, Iss. 2 [2018], Art. 4 354 WEST VIRGINIA LAW REVIEW [Vol. 121 2. The Take Care Clause and Stewardship...... ...... 379 3. The Take Care Clause and Good Faith ........................... 380 4. The Take Care Clause and Legislative Supremacy......... 380 5. The Take Care Clause as Presidential Power Preservative .......................... ..... 381 6. The Take Care Clause and Executive Branch Management. ............................. 382 B. The Take Care Clause and the ProsecutorialFunction ....... 386 1. Federal Prosecutors ..................... ..... 386 2. The Federal Bureau of Investigation (FBI)..................... 387 3. The Prosecutorial Function ............ .......... 388 4. Prosecutorial Integrity and Non-Interference.................. 389 5. The Dual Function Paradox: Advisor & Independent Actor .............................................. 390 C. A Take Care Clause Hardship: CriminalInvestigations of White House Actors ...................... ..... 390 IV. TAKE CARE CLAUSE ENFORCEMENT OF NON-INTERFERENCE IN CRIMINAL PROSECUTIONS .................... ........ 393 A. The Executive Branch............................................ 395 1. White House-Department Contacts Policies................... 396 i. The FordAdministration ............ .......... 397 ii. The CarterAdministration .................. 398 iii. The Reagan Administration............................ 399 iv. The George H. W Bush Administration.. ....... 399 v. The Clinton Administration .................. 400 vi. The George W Bush Administration........... 401 vii. The Obama Administration .................. 402 viii. The Trump Administration ......... ......... 403 2. Core Features of White House-Department Contacts Policies......................... .......... 404 i. Front Office GatekeeperRoles ............... 404 ii. Restrictions and Exemptions Follow Function......... 404 iii. The Standardfor Exceptions as to Specific Matters................................. 405 a. Contacts "Important for the Performance of the President's Duties"......................... 405 b. Contacts "Appropriate from a Law Enforcement Perspective"................... 406 3. Executive Branch Accountability Community ............... 406 4. White House Aversion to Comment on Pending Cases.. 407 5. Executive Objections to Congressional Interference in Criminal Matters .................. ................ 408 B. The Legislative Branch ........................... 409 https://researchrepository.wvu.edu/wvlr/vol121/iss2/4 2 Wright: The Take Care Clause, Justice Department Independence, and White 2018] WHITE HOUSE CONTROL 355 1. Defining "Law".................. .......... 410 2. Senate Advice and Consent in Executive Nominations.. 410 3. Congressional Oversight ................. ...... 412 4. Legislative Responses to Presidential Overreach ........... 413 5. Censure ............................. ..... 414 6. Impeachment ........................ ...... 414 C. The Judicial Branch........................ 416 V. CONCLUSION ........................................ 416 ABSTRACT Problematic relations between the White House and the U.S. Department of Justice stand out even amidst the broader tumult of President Donald Trump's first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House hasfollowed the generalcontours ofpredecessor administrations.Those policies recognize that White House contacts restrictions vary with the Department's complex functions, restrict channels of contact, and restrict personnel authorizedto make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutionalduty and contact would be appropriatefrom a law enforcement perspective. A number of episodes, however, suggest that the Presidentand senior administrationofficials have not honored the spirit, and in some cases the letter, of that contacts policy. One ofthe frequent criticisms leveled againstPresident Trump is that he disregards many norms and traditions that have been observed by presidential administrations of both parties for decades. Restrictions on White House interference in criminal investigations do not merely protect norms. Rather, those policies seek to prevent unconstitutionalconduct by the Presidentand his politicalappointees. This Article demonstrates thatpolitical interference by the Presidentundertaken in badfaith could violate the Take Care Clause even in the absence of a criminal statute. Obstructive behavior is even worse. Whether or not the Presidentis indictablefor the commission of a statutory criminaloffense of obstruction ofjustice during his tenure in office, this Article explains why the Presidentmay violate the Take Care Clause independently of criminal offenses. A principleofpolitical noninterference by the White House in thefederal prosecutionfunction in particularmatters is consistent with Article II Neither the Vesting Clause, the President'sposition atop the Executive Branch, nor the President's. broader enforcement discretion defeat the anti-interference principles commanded by the PresidentialOath and the Take Care Clause. It is a question that goes to the very concept ofRule ofLaw itself However, political processes, rather than justiciable legal proceedings, serve as the presumptive source of Take Care Clause enforcement. Disseminated by The Research Repository @ WVU, 2018 3 West Virginia Law Review, Vol. 121, Iss. 2 [2018], Art. 4 356 WEST VIRGINIA LAW REVIEW [Vol. 121 But in a constitutional sense, the Attorney General remains responsible to the President, and the President to the public. Although true institutional independence is therefore impossible, the President is best served if the Attorney General and the lawyers who assist him are free to exercise their professional judgments. Just as important, they must be perceived by the Americanpeople