Executive Power

The Trump Interview and DOJ Independence

By Jack Goldsmith
Thursday, July 20, 2017, 9:37 AM

I see the implications of the Trump interview a little differently than Ben does.

First, Ben says that the only honorable thing for Attorney General Sessions and Deputy Attorney General Rosenstein to do in light of Trump’s intemperate attacks is to resign.   “If they were willing to be touched by greatness even for a moment, they would resign together with a strong statement in defense of the integrity of federal law enforcement, the men and women who carry it out, and the processes under which they work. That’s what people with honor would do in this situation.”  I think one or both men would be justified in resigning here.  But I do not think that is what honor requires.  Why do Sessions or Rosenstein need to resign to make a strong statement of DOJ independence?  Why not just make the statement?  When the President publicly expresses a lack of confidence in you, that is grounds for resignation.  But in this context the resignation of the top two officials in DOJ would throw DOJ into more of a crisis than it already is in.  I can easily imagine Sessions and Rosenstein thinking that the honorable thing to do is to hang tough and maintain the independence of the Department—as they have done, at least, in the Sessions recusal and the Mueller appointment—until Trump fires them.  I am not sure we are in a “dangerous moment,” as Ben says, but it is not a great moment, and it is not clear why the resignation of the top two DOJ officials would make it better.

Second, and relatedly, Ben says that federal law enforcement “lacks a single person with the stature, the institutional position, and the fortitude to stand up to him.”  I am not sure that resignations at the top of DOJ would help in the effort to stand up to the President.  I am also not sure what standing up to the President means in this context beyond (as Rosenstein implies) DOJ simply putting down its head, plunging forward, and doing its job rigorously in the Russia investigation, and letting the chips fall where they may.  That is the best way to demonstrate DOJ independence and stand up to the President—not by resignation, or by verbal attacks, but simply by maintaining independence in practice.  Ben appears to believe that DOJ independence is crumbing under Trump’s pressure.  But other than Rosenstein’s apparently enabling role in firing Comey, I think DOJ independence is holding up just fine in the face of the president’s attacks—in Sessions recusal, which angered the president; in Rosenstein’s appointment of the beyond-reproach Mueller, which angered the president; and in the appointment of Chris Wray to replace Comey.

Third, while I have zero doubt that Mueller is beyond reproach, and that his hiring decisions are entirely on the merits, I am a little more worried than Ben about the Democratic tilt of Mueller’s staff thus far.  I don’t worry about the reality of bias.  But I do worry about the appearance of bias.  The problem is not that Mueller’s decisions will be skewed by a staff that leans Democratic, but rather that this tilt will allow Trump and many others to lambaste all of his decisions as political.  This is precisely what the Democrats did to Ken Starr’s Independent Counsel investigation, with some success.  And we can expect it from the Republicans, and especially from the Trump camp, against Mueller.  Mueller is such a straight arrow that he is probably oblivious to these “political” concerns.  But his work will be judged not just through the legal lens, but also through the political lens.  And its success will stand in part on political factors.  He would be wise in his remaining hires to try to make his staff appear more balanced politically.