Why the rule of law depends on the president and his attorney general

Why the rule of law depends on the president and his attorney general
© Greg Nash

The comments by President TrumpDonald John TrumpWhite House sued over lack of sign language interpreters at coronavirus briefings Wife blames Trump, lack of masks for husband's coronavirus death in obit: 'May Karma find you all' Trump authorizes reduced funding for National Guard coronavirus response through 2020 MORE last month about the sentencing of Roger StoneRoger Jason StoneNew HBO documentary lets Gaetz, Massie, Buck offer their take on how to 'drain the swamp' The Hill's Morning Report - Presented by Facebook - Brawls on Capitol Hill on Barr and COVID-19 Democrats blister Barr during tense hearing MORE brought a warning from Attorney General William BarrBill BarrDemocrats' silence on our summer of violence is a tactical blunder Trump prizes loyalty over competence — we are seeing the results Rep. Raúl Grijalva tests positive for COVID-19 MORE that such remarks had “made it impossible for me to do my job.” Questioned about this, Trump agreed, but said that he has a right to his opinion, as he is the chief law enforcement officer of the United States. This is true, of course, while the president has a constitutional obligation to “take care that the laws be faithfully executed.” However, it is precisely because he has this obligation that the president should reconsider his position.

As many have noted, Barr is an important asset for the administration. He is a straight shooter with extraordinary credibility, and he is admired for his independence. His departure would not only diminish confidence in the administration as a whole, but would likely end the investigation into the false Russia collusion charge that roiled the Trump presidency. Losing Barr would be a serious blow to the president. That is why the most ardent supporters of Trump in Congress, including Senate Majority Leader Mitch McConnell and House Minority Leader Kevin McCarthy, have sided with Barr, saying that the president should listen to his attorney general.

But Trump apparently does not see it this way. He has continued to attack the Stone verdict and even the judge, despite Barr reportedly telling the people in the White House that he was serious about quitting unless the president stops. Trump seems willing to risk losing an important member of his administration to continue his campaign for more leniency toward Stone. He is doing so even though he could commute the sentence or pardon Stone after the conviction and any appeals are completed.

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The president is correct about his constitutional powers, but he should recognize that publicly criticizing the attorney general on a matter of law enforcement is not the same as criticizing the secretary of veterans affairs for lapses in health care for veterans. The difference is its effect on the rule of law, which is not in the Constitution, but it underlies its structure. The Framers created an independent judiciary, appointed for life, for the purpose of assuring that justice would be done in individual cases. Since the attorney general and the Justice Department are direct participants in the legal process, it is essential that their actions meet this standard.

The belief among Americans that the law is applied fairly is one of the reasons the United States is a law abiding country. So comments by the president about how the attorney general is proceeding in a particular case raises questions about whether the president is interfering with the judicial process and the even handedness that is essential to the rule of law. That is why the attorney general is resisting, and why he says the remarks of the president can make it impossible for him to do his job.

It is certainly true, as Trump says, that the president has the right to his opinion about a court proceeding, as do all Americans. However, because the president is a powerful political figure who appoints and can dismiss the attorney general, his expression of an opinion about a legal decision like the Stone case raises a question whether the law is being fairly and evenly applied. If the attorney general follows the view of the president, then it looks to the public as though the rule of law has been sacrificed to politics. If he does not, then it looks like he defied the president and calls into question the critical relationship with administration officials.

This is not an argument against the power of the president. Rather, it is an argument that retaining the independence of the attorney general and the Justice Department to make decisions on ordinary law enforcement is part of the obligation of the president to “take care that the laws be faithfully executed.” As Alexander Hamilton himself wrote in the Federalist Papers, “the ordinary administration of criminal and civil justice” will contribute “more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government.”

Peter Wallison is a senior fellow at the American Enterprise Institute. He was White House counsel in the Reagan administration. His latest book is “Judicial Fortitude: The Last Chance to Rein the Administrative State.”