The unitary executive theory of the Constitution is, more or less, that the president has absolute authority over the executive branch of the federal government. This understanding of presidential power was once quite controversial; in the wake of recent Supreme Court decisions, it has gained wider acceptance. In this post, I want to consider a problem of unitary executive theory that has received little attention. Namely, unitary executive theory may grant the president authority over federal departments, but exercising that power in individual criminal prosecutions constitutes poor public management that destroys, e.g., the Department of Justice’s institutional authority.
Sometimes it is imprudent and unwise (and even dangerous) for the president to exercise his authority over federal departments. In contrast, the president who respects the moral norm that encourages him to keep his hands off the rest of the federal government is probably making a wise choice.
Recent news events illuminate the problematic implications of unitary executive theory. For instance, the recent reactions of the federal government to the alleged vandalism to the Lincoln Memorial’s Reflecting Pool have been immensely harmful—not only to the reputation of the Department of Justice but also, and more importantly, to innocent people’s lives.
Last month, US Attorney Jeanine Pirro claimed to have “tremendous evidence” of vandalism to the pool. But just a few days ago, Pirro’s office dropped all the vandalism charges, conceding that a “botched installation” by a construction contractor was what actually damaged the pool. The president reacted by alleging that Pirro had “choked” and that he was disappointed in her, while insisting that vandals were really responsible. It seems possible that Pirro’s initial prosecutorial announcements were intended to please the president—and that her office’s walkback was intended to meet her ethical obligations not to misrepresent matters before a court. The arrests and initial prosecution disrupted the lives of several defendants (one poor fellow was fired soon after his arrest, and then had to move out of his house because he couldn’t make the rent). The spectacle of a president insisting that DOJ prosecutors are pulling back cases because they can’t handle the stress of the job is painful to see.
After I published a brief piece here earlier this week about the dangers of the new rule at the Bureau of Prisons—a rule that allows the attorney general complete discretion to override the Bureau’s prisoner placement decisions—several readers asked me if my position was in tension with unitary executive theory. It is not, but to explain why, it may be helpful to explore what some people think is the strongest case against unitary executive theory. Why should there be any separation between the White House and the Department of Justice (DOJ)?
Not everyone believes that the DOJ separation norm has any moral or legal force. Jeffrey Clark (who famously attempted to enlist the Justice Department in support of President Trump’s attempt to overturn the 2020 election) has argued that “the Justice Department can be no more independent of the president than the Department of Commerce or the Department of Health and Human Services”; he suggests that those who argue for a norm of DOJ separation exhibit confusion about constitutional fundamentals. Clark appears to argue, more precisely, that there is no respectable justification for the informal norm that insulates the DOJ from presidential commands.
Clark’s perspective is, to say the least, controversial. Of course, it is part of the DOJ’s internal culture that this norm of separation is well-justified and deserves respect, and I want to provide a brief account of this norm’s impact and origin. The norm arguably originated in the fallout from President Nixon’s notorious firing of Attorney General Elliott Richardson. Nixon was facing an investigation by special prosecutor Archibald Cox over Watergate, and he ordered Richardson to fire Cox. Richardson resigned rather than obey; his deputy, William Ruckelshaus, then received the same order and resigned as well. The solicitor general, Robert Bork, ultimately complied with Nixon’s order. (Bork later explained that he followed Nixon’s orders because of the larger interests of the executive branch, which lay in avoiding the chaos that would have resulted from mass, top-level resignations from the Department of Justice.)
The resulting norm of DOJ separation aims to avoid the tensions that DOJ personnel might face between their loyalty to the president and their desire to make law-enforcement decisions on the merits. Of course, that norm of separation doesn’t require an impermeable wall between the White House and the DOJ. Rather, it’s something like this: discussions of general policy (that the president should ultimately set and the department should ultimately implement) are perfectly okay, but presidential orders involving individual cases or individual particulars of the application of the law (for example, presidential orders that some particular person should be targeted for prosecution) are prohibited. To be clear, this norm isn’t, in any sense, a law; instead, it is about prudent behavior. It is about what the president shouldn’t do, not what the president can’t do.
From a public management perspective, the norm that prevents the president from meddling in individual prosecutions has strong positive consequences. It bolsters public confidence in the neutrality of DOJ prosecutions; similarly, it bolsters judicial confidence in the credibility of DOJ when its representatives appear in court. It immunizes career lawyers from being second-guessed for political reasons. It encourages the recruitment of a capable DOJ talent pool. Relatedly, and perhaps most importantly, this norm lowers the temperature of certain kinds of political disputes by minimizing the possibility that rank-and-file federal prosecutors are seen as just another arm of the president. The president who ignores this norm faces costs and benefits: the president who tries to enlist the DOJ in cases for political reasons may strengthen himself in the short term, but he may also weaken himself in the long term by diminishing the perceived independence and moral authority of the DOJ.
Regrettably, respect for the separation norm has been strained. The Biden administration’s Jen Psaki famously issued a public warning to Alabama state legislators that they were being put “on notice” of possible DOJ actions because they had passed legislation to ban the use of gender-altering medicines and surgeries; those legislators, Psaki warned, should consider the consequences of their alleged violations of the Constitution and federal law. The signal that Psaki’s warning sent—that the Department of Justice was being drafted into service for the White House’s political agenda—suggested something less than reverence for the norm of separation.
In the second Trump administration, respect for the norm has begun to collapse. The presumption of regularity—the foundational assumption that the government has complied with all of its legal duties and is being truthful in its communications with judges—is now being questioned by those judges with some frequency. That consequence will almost inevitably occur when the positions the Department of Justice takes appear politicized. (Recall the dismissal of felony charges against NYC Mayor Eric Adams, not because of concerns about the prosecution’s ability to achieve a conviction, but because continuing the prosecution would hinder the mayor from aiding federal immigration initiatives and policies. Or recall Abrego Garcia v. Noem, in which the court found that the government’s filings demonstrated “a deliberate evasion of their fundamental discovery obligations” and a failure “to respond in good faith” that “must be viewed as willful and intentional noncompliance.” And it seems likely that a recent disclosure in the prosecution of James Comey—that his FBI interviewers were told to send a summary of Comey’s interview immediately to President Trump on Air Force One—would raise the eyebrows of any judge.) There is a danger of a death spiral as these departures from the norm occur more often: the cultural constraints that prevent defiance of the norm by successive administrations will also wither.
Again, DOJ’s separation norm does not have the force of law; nonetheless, it has been backstopped by multiple legal and managerial measures. Career prosecutors have civil service protections; they can’t be removed for refusing to issue an indictment, even if it’s for someone the administration wants indicted. State-level ethics rules prevent the filing of charges without probable cause. Managerially, charging decisions aren’t typically made by a lone federal lawyer; they are almost always the result of multiple experienced prosecutors at multiple levels who reach consensus before charges are filed. In other words, the DOJ separation norm is supported not just by law but also by the DOJ’s managerial culture. Presidents who respect this norm will ensure that the nation is protected by a capable DOJ; presidents who don’t respect this norm will preside over, e.g., a DOJ with a civil rights division that has bled out three-quarters of its career attorneys. (Notably, the Trump Administration has taken measures to weaken each one of these pillars of the separation norm: the administration has attempted to weaken civil service protections, end the application of state ethics laws to DOJ attorneys, and instruct those attorneys that they should be “vigorously defending presidential policies and actions.”)
In short, perhaps presidents who try to collapse the separation norm are strengthening their own powers within our constitutional system; ultimately, however, they are weakening the ability of the federal government to perform one of its central functions.
Under the Constitution, the president must “take Care that the laws be faithfully executed.” As John Yoo’s writing on the clause suggests, just what this clause means is, in some respects, mysterious. I think the Take Care clause implies both a duty of good administration and the power to enforce the law. Of course, there is a general rule (especially after Slaughter) that the executive, as personified in the president, should and must make broad decisions that are not properly delegated to others. But there is a prudential exception to that general rule. That exception involves respect for a norm of decentralized, non-politicized decision-making in a few realms—both for the president and for the agency heads who answer to him. That means that, in some limited circumstances, the best way to ensure that the laws are faithfully executed is for the chief executive to keep his hands off the wheel.
The realms that should, as a general matter, be protected from second-guessing by a hierarchical and political central authority certainly include certain kinds of particularized criminal justice decisions; such individualized decisions are better made in a decentralized manner by personnel such as career judges, prosecutors, and administrators. The chief executive who is strong enough to protect such decentralized decision-making will likely find that this choice has fostered a more respected government that is better at protecting our rights; a prudent president will resist stepping into the shoes of the chief prosecutor. In the long run, a president who flexes his muscles by instructing prosecutors how to run their cases is likely to find that he has made himself and his country weaker.
