Biden would be well within the bounds of law and norms were he to directly instruct the attorney general not to investigate or prosecute Trump or close Trump associates. But he has suggested that he wants his attorney general to make this decision.
The case against the constitutionality of self-pardons is strong. Beyond barring the president from pardoning himself, what else could Congress do?
Democratic candidates for president have spent relatively little time discussing Justice Department independence on the campaign trail—in contrast to the first post-Watergate presidential election, when Jimmy Carter made rule-of-law reforms a major campaign issue.
The extent to which federal obstruction of justice statutes apply to the president, especially when concerning actions facially within the office’s powers under Article II, has been hotly contested at least since President Trump fired FBI Director James Comey in May 2017.
An important debate is happening at Lawfare and elsewhere about Special Counsel Robert Mueller’s application of the obstruction of justice statutes to conduct by President Trump. Jack Goldsmith argues that Mueller’s analysis of the obstruction statutes does not stand up to close scrutiny. Benjamin Wittes argues that it does.
Writing here at Lawfare in the early days of the Trump administration, Benjamin Wittes and Quinta Jurecic zeroed in on a central dilemma of this presidency: What happens when the occupant of the office is unable to sincerely and credibly swear the constitutional oath, required by Article II, to “faithfully execute the office of the President of the United States”?
I appreciate Robert Litt's response to my recent Lawfare piece, which raised the possibility of Congress giving the FBI independence from presidential control by means of statutory for-cause limits on removal of the director.