Andrew Kent is a professor at Fordham University School of Law and holds the John D. Feerick Research Chair.
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The post-Trump period should have been a moment ripe for reforms of executive power. It seems increasingly possible that the window of opportunity may pass by without much achieved in the way of successful reform.
On the eve of the first anniversary of the Jan. 6 insurrection, Attorney General Merrick Garland delivered a speech reviewing the Justice Department’s efforts to investigate and prosecute those responsible for the attack on the Capitol.
The attorney general is steeped in the Justice Department’s culture of quietness. He needs to talk more—like Ed Levi, the man he points to as his model.
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.