Tag Archives: separation of powers

Alito Teases a Judicial Revolution

By David B. Rivkin Jr. and Lee A. Casey

23 June 2019 in the Wall Street Journal

The Supreme Court’s decision last week in Gundy v. U.S. was deceptively anticlimactic. The vote was 5-3, but there was no majority opinion and the decision made no new law. Justice Samuel Alito’s lone concurrence, however, suggested that a major break with precedent—and a return to the Constitution’s original meaning—will soon be in the offing.

The Constitution’s first clause after the Preamble states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Since 1935 the justices have ignored that provision and permitted lawmakers to delegate their authority to the executive branch. At issue in this case was a provision of the Sex Offender Registration and Notification Act of 2006, or Sorna, that directed the attorney general to “specify the applicability” of the law’s registration requirements to offenders, like Herman Gundy, whose crimes predated the act. Mr. Gundy, who was sentenced to 10 years in prison for failing to register, claimed this delegation was illegitimate.

The case was heard four days before Justice Brett Kavanaugh’s confirmation. Had Justice Alito dissented, the resulting 4-4 split would have upheld the lower court’s ruling against Mr. Gundy without any opinion being issued. Instead, Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.

In their quest to control governmental power and protect individual liberty, the Framers separated federal power among three branches of government. As Justice Gorsuch notes, they also “went to great lengths to make lawmaking difficult,” requiring consent of both houses of Congress and the president, or legislative supermajorities. The veto was the executive branch’s only role in the legislative process.

That was deliberate. Justice Gorsuch quotes Montesquieu, who was quoted by James Madison in Federalist No. 47: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

For more than a century after its creation, the high court actively policed the separation of executive and legislative powers, requiring Congress to make the hard, politically risky policy decisions and permitting only limited delegation of operational details. But in the 1930s, under pressure to uphold the vast delegations of the New Deal, the justices changed course and held that delegation was permissible so long as an “intelligible principle” could be discerned to govern how that power was exercised.

Gundy offered an excellent opportunity to begin reasserting the original constitutional design. Sorna’s delegation of power was extreme. While setting up an elaborate registration system for sex offenders convicted after its enactment, the law granted the attorney general “authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.” A single official in the executive branch was given the power to impose requirements carrying severe criminal penalties on more than 500,000 Americans, and then to carry them out.

Justice Elena Kagan, who wrote the plurality opinion, struggled mightily to find an intelligible principle. She wrote that the court had interpreted Sorna as requiring applicability “to all pre-Act offenders as soon as feasible.” But as Justice Gorsuch noted, that language appears neither in the statute nor in the Justice Department’s implementing regulations.

Justices Gorsuch’s and Alito’s opinions, together with Justice Kavanaugh’s strong separation-of-powers jurisprudence as an appellate judge, suggest that a majority of justices are prepared to reimpose proper constitutional restraints on congressional delegations. All they need is a suitable case.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/alito-teases-a-judicial-revolution-11561317002

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Demanding Trump’s tax returns is congressional overreach

By David B. Rivkin Jr. and Lee A. Casey

17 May 2019 in The Hill

Democrats in Congress long have demanded that President Trump make his tax returns public. Many promised voters that, if given the House majority in the 2018 elections, they would force public disclosure of Trump’s returns. Indeed, they’ve demanded access to the president’s returns, but Treasury Secretary Steven Mnuchin has refused to give Congress that access. He was right to refuse. His action is firmly grounded in federal statute and the Constitution.

In April, House Ways and Means Committee Chairman Richard Neal (D-Mass.) demanded Trump’s tax returns from 2013 to 2018, invoking a federal statute (26 U.S.C. § 6103) that makes federal tax returns confidential. Other statutory sections, including 26 U.S.C. § 7213, make it a felony to disclose information in federal tax returns without proper authorization.

There are narrowly drawn exceptions to the general rule of confidentiality, including one that allows congressional tax committees to demand copies of individual tax returns. That information, however, cannot be made public without the taxpayer’s written consent. Secretary Mnuchin must have a well-grounded fear that one or more members of Congress would make the president’s returns public, hiding behind the Constitution’s speech or debate clause to escape prosecution. This factor alone can preclude the release of tax information.

There are, however, even more fundamental problems with the request. The committee’s stated purpose is to investigate how the IRS enforces tax laws against sitting presidents. That is an obvious pretext. Even if the Democrats’ posturing could be ignored, the fact that only Trump’s returns are sought — and not those of former presidents — makes the game clear.

Former presidents have disclosed some tax information, but their full returns and all supporting documents were not released. And since the ostensible oversight focus is how the IRS audits tax returns of sitting presidents, that type of information is not publicly available. In addition, even if Secretary Mnuchin were to ignore the politics involved, he would be justified in withholding the president’s tax returns on constitutional grounds.

Congressional demands for information must be grounded in proper constitutional powers. Congress does not have general investigative authority, let alone a mandate to enforce federal law, both of which are vested in the president. Nor does it have adjudicative power, which is reserved to the judiciary. Its proper investigative power is broad but limited to the purposes of legislation or oversight. And Congress’s oversight powers can be exerted only over matters that plausibly can be reached through the exercise of congressional legislative powers.

As the Supreme Court stated in Watkins v. United States (1957), with respect to a McCarthy-era demand by the House Un-American Activities Committee for information from a private citizen, “there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress,” and “investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”

With this in mind, the proper tailoring of tax information-related requests by Congress is essential. For example, it may well be that looking at how the IRS audits tax returns of sitting presidents is a worthwhile legislative pursuit; however, assembling all available tax returns of former presidents and arranging the information so that the congressional review does not include ascertaining the identity of the president to whom a given set of tax returns belongs and then ensuring that even this randomized information cannot be publicly disclosed would serve all legitimate legislative needs. Everything else is simple harassment.

To ascribe to Congress greater authority in this area would produce a situation where, under the guise of enacting tax laws, congressional committees could gain access to the tax information of individual Americans, including those regarded by specific members of Congress as political or ideological enemies. This would result in unprecedented abuses of the most sensitive personal information about U.S. citizens that would render Nixon-era IRS abuses tame by comparison.

And, even putting aside partisanship, enabling Congress to snoop on Americans at will is not to be countenanced. What seemingly has eluded Chairman Neal’s supporters is that due process requirements operate with equal vigor on all branches of government, including Congress. Basic due process requirements prevent the executive branch from obtaining private information on U.S. citizens merely because it wants this data.

Instead, when seeking access to financial and other information, law enforcement agencies must demonstrate, usually to a judge, why such information can be legitimately obtained. Improperly gained information is routinely suppressed, and executive branch officials who have obtained it often are reprimanded and even prosecuted. The congressional statute in issue has to be construed with these constitutional imperatives in mind.

There is an additional consideration: Although Congress has oversight authority over the executive branch generally, it has no such authority over the president himself — any more than the president has oversight authority over Congress or the judiciary. Each branch of the federal government is constitutionally equal; none is subordinate. Trump’s business activities before he entered office, and his refusal to make public his tax returns, are not proper subjects of congressional investigation. Although presidential candidates usually release their tax returns as a matter of campaign strategy, Congress could not compel such a release by statute. The Constitution sets qualifications for the presidency, and Congress cannot alter that list.

The fact that Trump’s tax returns are being sought pursuant to a statute that ordinarily would require the Treasury secretary to provide the returns, does not alter the constitutional balance involved. Indeed, the use of Congress’s oversight powers and legislative powers are cabined by the same constitutional principles. The request is based upon an unconstitutional application of a statute — unconstitutional as applied to the situation.

Even if Congress were acting within its constitutional authority, an effort to use its legitimate powers to force disclosure of the president’s tax returns — with the clear goal of debilitating the presidency — would have to be balanced by the courts against the stated congressional need. In balancing otherwise legitimate, but conflicting, assertions of power by the two political branches, courts have looked at their respective needs and the harm that would be inflicted on their respective institutional authorities if one branch were to give way. If Congress does need President Trump’s tax returns for some legitimate legislative purpose, that need will be equally served by providing his returns after he leaves office.

Congress has many powers that can thwart a president’s policy or personnel choices, but only impeachment can personally hold a president responsible for his actions. Even here, it is not clear what relevance a president’s pre-inauguration personal tax returns could have to the question whether he has committed high crimes and misdemeanors while in office.

What Chairman Neal seeks cannot be granted. What is really at stake are not President Trump’s political fortunes but the preservation of the constitutionally required balance of powers between two political branches. Secretary Mnuchin is defending the ability of presidents to function without fear of congressionally driven debilitation. There is every reason to believe that he will prevail in the courts of law as well as in the court of public opinion.

David B. Rivkin Jr. and Lee A. Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and the Department of Justice under former Presidents Reagan and George H.W. Bush.

Source: https://thehill.com/opinion/white-house/444231-demanding-trumps-tax-returns-is-congressional-overreach

Gerrymandering Disputes Don’t Belong in Court

By David B. Rivkin Jr and Richard Raile

26 March 2019 in the Wall Street Journal

Not every day does the Supreme Court have a chance to advance democracy and reverse a major mistake while also lightening its future workload. But it can do all those things in two cases it hears Tuesday dealing with gerrymandering of congressional districts.

In Davis v. Bandemer (1986), six justices agreed that courts can resolve complaints about so-called partisan gerrymandering, the drawing of district lines to favor the party that controls the process. In legal parlance, the justices held that such complaints are “justiciable.” But no five justices were able to agree on what legal principles courts should apply in deciding such cases. That question has been litigated ever since, including this week’s cases, Rucho v. Common Cause and Lamone v. Benisek. The court should put an end to this futile experiment by ruling that such claims are nonjusticiable political questions.

Electoral maneuvering, of which gerrymandering is one example, is as old as democracy itself. One of the more colorful examples is the English rotten boroughs system, which allowed the Crown and its supporters to control a substantial number of seats in the House of Commons until the passage of the Reform Act of 1832. Partisan gerrymandering strikes many observers as unfair, but it’s not clear what constitutional provision it might violate. The Constitution itself doesn’t even anticipate the existence of political parties.

The Constitution does address the question of who has the power to draw district lines. Article I, Section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” But the framers understood that what Alexander Hamilton called the “discretionary power over elections” entailed the danger, noted by James Madison, that legislatures might “mould their regulations as to favor the candidates they wish to succeed.” Hamilton went even further, saying unlimited state legislative authority over congressional elections would entail the power to “annihilate” the federal government.

Thus the same section also provides that “Congress may at any time by law make or alter such regulations.” That this delegation of power to Congress was the response to the possibility of abuse is powerful evidence that the Framers addressed the problem through the structural balance-of-power provisions and that a judicial check on legislatures’ politics is unavailable. Because the Framers agreed that a national election code was unworkable and that a benefit inhered in state legislatures’ ability to address local needs and traditions, they chose not to codify standards in the constitution.

With no standards to apply, judges are left to invent them—or to dismiss challenges as nonjusticiable. That’s where political-question doctrine comes in. Under the Constitution, some problems have no judicial resolution and are instead left to the other, democratically elected branches. Recent Supreme Court precedent establishes two principal hallmarks of a nonjusticiable political question—constitutional text committing a choice to the other branches and the absence of judicially manageable standards. Both apply here.

Another problem is that it is impossible to decide a partisan-gerrymandering case without making an initial determination of what a “fair” redistricting scheme would look like. That’s a question of policy, not law. A principle of partisan fairness is not like the one-person, one-vote rule, which stems from the individual right to representation and identifies equality by a clear, judicially manageable ratio of persons to districts. Nor is a gerrymander like a restraint on speech, which can be cured by allowing all sides to voice their views; or like discrimination, which can be cured by a mandate not to take account of race or another suspect characteristic.

Under the Constitution, the right to political representation belongs to individual human beings, not groups. Even if it is possible to draw maps in which Republicans and Democrats have equal electoral opportunities, a “right” to translate a party’s percentage of votes into seats is not one that all Americans can share. What about independents, members of the Green or Libertarian parties, or even partisans who disagree with platform planks of the two major parties, such as pro-choice Republicans or antitax Democrats?

How to define representational units is a choice that confronts every republican government, and that choice is inherently political. The Constitution itself was made possible by the Great Compromise, which accorded all states, regardless of population, two Senate seats. That affected the electoral opportunity of all citizens and groups. So did the choices to create the Electoral College and to make judges appointed for life rather than elected or term-limited. These were all deliberate choices to define representation according to policy and political compromise. They are not fundamentally different from the choices legislatures confront with every decade’s redistricting.

None of this is to suggest that each legislature’s redistricting choices are good ones; many are not. The questions are nonjusticiable not because they are easy, but because judges cannot distinguish good from bad answers without becoming politicians. If the calls for partisan “fairness” in redistricting represent a meaningful political desire, that desire will percolate through the system and translate into democratic change—like the change from appointment to election of senators. It wouldn’t even take a constitutional amendment for Congress to enact redistricting criteria limiting state legislatures’ political discretion. Proponents of fairness by lawsuit show remarkably little patience for the democratic process they claim to defend.

Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.

Source: https://www.wsj.com/articles/gerrymandering-disputes-dont-belong-in-court-11553555381

Stop the Impeachment Fishing Expedition

By David B. Rivkin Jr. and Elizabeth Price Foley

Feb. 14, 2019, in the Wall Street Journal

As William Barr begins his term as attorney general, House Democrats are aiming a “subpoena cannon” at President Trump, hoping to disable his presidency with investigations and possibly gather evidence to impeach him. Mr. Trump fired back in his State of the Union address: “If there is going to be peace and legislation, there cannot be war and investigation.” To protect the presidency and separation of powers, Mr. Barr should be prepared to seek a stay of all congressional investigations of Mr. Trump’s prepresidential conduct.

The president is not one among many, as are legislators and judges. Crippling his ability to function upsets the constitutional balance of power. For this reason, the Justice Department’s Office of Legal Counsel has repeatedly concluded that a sitting president may not be indicted or prosecuted. The same logic should apply to congressional investigations.

Congress is targeting Mr. Trump’s actions before becoming president because there are well-established constitutional limits, grounded in separation-of-powers doctrine, on its ability to investigate his official conduct. In U.S. v. Nixon (1974), the Supreme Court recognized a constitutionally based, although not unlimited, privilege of confidentiality to ensure “effective discharge of a President’s powers.” In Nixon v. Fitzgerald (1982), the justices held that presidents and ex-presidents have absolute immunity against civil liability for official presidential acts.

Executive immunity for prepresidential activity is less clear. In Clinton v. Jones (1997), which arose out of Paula Jones’s accusation that Bill Clinton sexually harassed her while he was governor of Arkansas, the justices reasoned that Ms. Jones’s lawsuit could proceed because the burden on the presidency objectively appeared light. Specifically, because only three sitting presidents had been sued for prepresidential acts, the justices thought it “unlikely that a deluge of such litigation will ever engulf the presidency.”

The court did, however, consider the question of whether civil litigation “could conceivably hamper the President in conducting the duties of his office.” It answered: “If and when that should occur, the court’s discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Unfortunately, the scenario the court called “unlikely” in 1997 now exists. Like Mr. Clinton, Mr. Trump faces an investigation by a zealous prosecutor with unlimited resources inquiring, among other things, into prepresidential activities. In addition, Mr. Trump is subject to a deluge of lawsuits and investigations, including by state attorneys general, involving his conduct before entering politics. The House Intelligence Committee has announced a wide-ranging investigation of two decades’ worth of Mr. Trump’s business dealings. The Ways and Means Committee plans to probe many years of Mr. Trump’s tax returns. By contrast, the 1995 resolution establishing the Senate Whitewater Committee targeted specific areas of possible improper conduct by the White House and federal banking regulators.

Congress has no authority to investigate or prosecute crimes; these responsibilities belong to the executive branch. It has no power to conduct fishing expeditions, and its investigatory authority is supposed to be in the service of legislation. As the Supreme Court warned in Watkins v. U.S. (1954), investigations unrelated to legislative business are an abuse of power that “can lead to ruthless exposure of private lives.” When congressional investigations seek ruthless exposure of a sitting president’s private life, the harm is not only to persons but to institutions.

Nor is investigating Mr. Trump’s prepresidential activities a legitimate exercise of the House’s impeachment power. The Framers viewed impeachment as a remedy for serious violations of public trust committed while in office. As Gouverneur Morris told the constitutional convention, impeachment would punish the president “not as a man, but as an officer, and punished only by degradation from his office.” Alexander Hamilton likewise observed in Federalist No. 65 that impeachment involves “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

The House Judiciary Committee has embraced this interpretation several times. In 1872, it refused to impeach Vice President Schuyler Colfax for taking—while he was in Congress—discounted shares of the Union Pacific Railroad as part of the Credit Mobilier scandal. The Judiciary Committee concluded in a report that impeachment “should only be applied to high crimes and misdemeanors committed while in office.” The committee’s Democrats took a similar tack in 1998, objecting to the committee’s resolution to impeach Mr. Clinton on the ground that perjury and obstruction of justice arising from the Jones case did not “amount to the abuse of official power which is an historically rooted prerequisite for impeaching a President.”

While the full House impeached Mr. Clinton for perjury before a grand jury, it voted down an article of impeachment for perjury in Ms. Jones’s civil case. Earlier efforts to impeach presidents clearly involved official acts: Andrew Johnson was impeached after violating the Tenure of Office Act. The effort to impeach Nixon began only after tapes implicating him in the Watergate burglary were obtained.

“Impeachment is like a wall around the fort of the separation of powers,” the Judiciary Committee Democrats wrote in 1998. “The crack we put in the wall today becomes the fissure tomorrow, which ultimately destroys the wall entirely.” If Congress can use its investigatory power to fish for evidence of impeachable acts, presidents will become politically accountable to Congress, not the people. Impeachment proceedings must be designated as such from the get-go, not obfuscated as amorphous “investigations.”

To protect the separation of powers, the president should defy all demands for information about his prepresidential activities. If Congress or private litigants seek to enforce these demands, the Justice Department should move to stay these proceedings while Mr. Trump is in office. If Democrats want to remove Mr. Trump from office, there are two legitimate ways to do so: By defeating him at the polls in 2020 or through properly conducted impeachment proceedings based on evidence of “high Crimes and Misdemeanors” committed while in office.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: www.wsj.com/articles/stop-the-impeachment-fishing-expedition-11550188732

Obstruction of justice? Careful what you wish for, lawmakers

By David B. Rivkin Jr. and Lee A. Casey

7 February 2018 in the Wall Street Journal

Democrats have attacked Attorney General-designate William Barr for a memo in which he argued against a legal theory some claim could support prosecuting President Trump for obstruction of justice. Mr. Barr argued that an exercise of the president’s constitutional authority—for instance, firing James Comey as director of the Federal Bureau of Investigation—cannot be construed as obstruction even if prosecutors believe he did so for improper reasons.

At his confirmation hearings, Mr. Barr rightly stood his ground. Critics should consider the implications of the motive-driven obstruction theory with respect not only to the president but also to the other branches of government. It has the potential to impair Congress, the judiciary and state governments as well.

If the personal motivations behind every lawful official act could potentially be grounds for criminal charges, then presidents—and their subordinates, “from the Attorney General down to the most junior line prosecutor,” as Mr. Barr put it in his memo—might shirk supervisory authority over a wide variety of cases. Law enforcement would operate on an autopilot, with extreme harshness as the default approach. The result, as Hamilton put it in Federalist No. 70, would be “a feeble executive,” which “implies a feeble execution of the government” and produces “bad government.”

Nothing would stop prosecutors from applying such a theory to lawmakers and judges. Suppose a congressional committee investigates a matter also under investigation by the FBI. If prosecutors think the motive is political—and politics is Congress’s lifeblood—that could be considered obstruction.

Mr. Trump’s critics claim any presidential action to eliminate special counsel Robert Mueller’s funding would be obstruction, even if otherwise consistent with federal appropriations law. It would follow that congressional decisions to reduce or eliminate appropriations for public corruption investigations, which frequently target members of Congress, could also be prosecuted.

Federal judges would likewise be vulnerable to prosecution based on their personal motivations in reaching decisions. The proper method of interpreting the Constitution is a matter of fierce legal and political debates, waged largely in judicial confirmation proceedings. Under the motive-based obstruction theory, a judge might face criminal charges because a prosecutor thinks his rulings were influenced by his political, ideological or religious beliefs. If an official’s motives can transform lawful actions into crimes, then presidents—or junior prosecutors—would be able to investigate judges whose decisions they dislike. The mere possibility would destroy judicial independence.

Nor is there any reason to limit the motive-based obstruction theory to the federal government. State governors, lawmakers and judges also have wide-ranging constitutional authority. Discerning their motivations would become a fair game for prosecutors.

Historical practice does not support obstruction charges based on an exercise of lawful constitutional powers. As the Supreme Court has said for centuries, and reaffirmed in National Labor Relations Board v. Noel Canning (2014), “the longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’ ” Novel assertions of governmental power must be viewed with considerable skepticism.

Preventing corruption doesn’t require the motive-driven obstruction theory. Prosecutors and other officials have plenty of existing tools to deal with corruption, including laws against bribery and nepotism as well as statutes governing conflicts of interest and recusal. These legal strictures are vigorously enforced at both federal and state levels.

If the motive-based obstruction theory prevails, criminal investigations of alleged obstruction by government officials at all levels, and in all institutions, would eventually become routine. That would impair the government’s ability to function and destroy the separation of powers by shifting vast authority to federal investigators and prosecutors and shielding them from political accountability.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/obstruction-of-justice-careful-what-you-wish-for-lawmakers-11549497555

The Rule of Law Prevails in the Travel Ban Case

Trump has the Constitution on his side

By David B. Rivkin Jr. and Lee A. Casey

June 12, 2018 in the Washington Post

The Constitution vests all executive power in the president. He has the authority to determine what matters will, and will not, be investigated and prosecuted by the U.S. government. This is also a core part of the president’s obligation to “take care that the laws be faithfully executed” — and it remains so even if done through an unorthodox channel such as Twitter.

So it is puzzling to see so much criticism of President Trump’s demand that the Justice Department investigate allegations about his presidential campaign being improperly subjected to an FBI counterintelligence probe. Same goes for his instruction to the Justice Department and the FBI that they should grant congressional requests for information about that matter.

Indeed, Trump would have been well within his authority, and well within precedent, to order an investigation entirely independent of the Justice Department and the FBI, as President Lyndon B. Johnson did when he created, by executive order, the Warren Commission to investigate the circumstances of President John F. Kennedy’s death.

When critics claim that a president cannot direct federal law-enforcement activities, they are implying that subordinate executive-branch officials can both judge and act upon their own assessment of a president’s motivations. There is no basis in the Constitution’s language, statute or Supreme Court precedent for such a notion. Those who object to a president’s instructions may resign, but they cannot usurp executive authority and defy him.

Imagine a world where this kind of insulation from presidential control existed. Such a system would create more opportunities for misconduct than the constitutionally enshrined system. Unlike appointed officials and employees, the president is accountable to the electorate. If he misuses his power, the voters can punish him. And if he abuses his authority, Congress can remove him from office through impeachment proceedings. By contrast, when FBI Director J. Edgar Hoover was, for all practical purposes, insulated from presidential control, his tenure lasted decades and encompassed law-enforcement abuses and civil rights violations.

Only in one post-Watergate statute did Congress limit the president’s ability to oversee criminal investigations by providing for appointment of an independent counsel who could be removed only for cause. The Supreme Court upheld this law in Morrison v. Olson, even though it trenched upon the president’s executive authority, concluding that the statute did not unduly limit the president’s power because the imposition was slight. Effectively treating all federal prosecutors as independent and placing the entire federal law-enforcement apparatus beyond the president’s supervision would fly in the face of Morrison.

Besides, with accountability being a paramount constitutional virtue, there is another fundamental constitutional problem with the kind of insulation that Trump’s critics propose. Congressionally mandated insulation of independent counsels at least left Congress politically accountable.

By contrast, bureaucratic self-­insulation is inherently imprecise and destroys accountability. And unlike the statutorily based insulation that the Supreme Court reviewed in Morrison, self-insulation evades judicial review. This is anathema to our constitutional architecture and the rule of law.

Similarly, the Justice Department’s assertion of executive privilege to shield from disclosure documents — such as those sought by Congress on federal surveillance of the Trump campaign — is also a core presidential function. This power is grounded in the president’s right — as the head of a co-equal branch of government — to maintain his independence and do his job. As the Supreme Court noted in United States v. Nixon, in which White House tape recordings of the president’s own conversations were at issue, the “privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

The court found, of course, that the privilege is not absolute. In Nixon and other cases, courts have required production of confidential executive materials. None has suggested, however, that a president’s voluntary decision to provide materials to Congress can be gainsaid, either by subordinate executive-branch officials or the courts. If the president determines to provide such materials to Congress, then the relevant agency officials must comply with his decision or resign. They have no legal authority to overrule such a presidential decision or to impose additional conditions on how Congress handles these materials.

This is true, though the documents being sought involve law-­enforcement materials. Indeed, as explained in a letter to Congress by Attorney General William French Smith in 1982, it has been Justice Department policy since at least President Franklin D. Roosevelt’s administration not to withhold such documents if they may “contain evidence of criminal or unethical conduct by agency officials.” Thus, to the extent Justice Department officials now object to Trump’s orders to provide the materials Congress seeks regarding surveillance of his presidential campaign, those objections cannot be sustained even under the department’s own policies.

Whatever one feels about the wisdom of Trump’s directives, fidelity to the Constitution best protects our democracy in the long run.

David B. Rivkin Jr. and Lee A. Casey, who practice appellate and constitutional law in the District, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Rivkin also served in the White House counsel’s office in the George H.W. Bush administration.

Source: www.washingtonpost.com/opinions/yes-trump-has-the-power-to-investigate-the-fbis-probe-of-his-campaign/2018/06/12/dfaf7f84-6e5a-11e8-afd5-778aca903bbe_story.html