When President Donald Trump publicly demanded that the Justice Department open an investigation into the FBI’s scrutiny of his campaign contacts with Russia, he inched further toward breaching an established constraint on executive power: The White House does not make decisions about individual law enforcement investigations.
“It’s an incredible historical moment,” said Rebecca Roiphe, a professor at New York Law School who helped write a coming scholarly article on the limits of presidential control over the Justice Department. Trump’s move, she said, “is the culmination of a lot of moments in which he has chipped away at prosecutorial independence, but this is a direct assault.”
Almost since he took office, Trump has battered the Justice Department’s independence indirectly — lamenting its failure to reopen a criminal investigation of Hillary Clinton that found no wrongdoing, and openly complaining that Attorney General Jeff Sessions recused himself from the Russia inquiry. But he had also acknowledged that as president, “I am not supposed to be involved with the Justice Department,” as he told a radio interviewer with frustration last fall.
As part of that pattern, he has also denied the account by James B. Comey, the FBI director he abruptly fired, that the president privately urged him to drop an investigation into Michael T. Flynn, Trump’s first national security adviser.
But Trump has also been flirting with going further, as he hinted late last year when he claimed in a New York Times interview that “I have an absolute right to do what I want to with the Justice Department.” And now, by unabashedly ordering the department to open a particular investigation, Trump has ratcheted up his willingness to impose direct political control over the work of law enforcement officials.
Trump’s demand was part of the latest cycle in the campaign by his allies in Congress and conservative news media outlets to discredit the special counsel investigation into whether his campaign conspired with Russia in its interference in the 2016 election and whether he committed obstruction of justice.
One of Trump’s most stalwart defenders, Rep. Devin Nunes, R-Calif., who is chairman of the House Intelligence Committee, has been using his oversight powers to investigate the FBI’s investigation, portraying several early steps in 2016 as scandalous. Most recently, with backing from House Speaker Paul D. Ryan, Nunes has been trying to force the Justice Department to identify a confidential source who assisted the FBI.
As a result of that battle, the existence of the source has shaken into public view. The informant, an American academic who has taught in Britain, approached several of the members of the Trump campaign who had been in contact with suspected Russian agents and tried to find out what they knew about Russian hackers’ theft of Democratic emails. Trump’s allies have portrayed this as the FBI infiltrating his campaign with a spy.
On Sunday, Trump wrote on Twitter: “I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes — and if any such demands or requests were made by people within the Obama Administration!”
In response, the deputy attorney general, Rod J. Rosenstein, referred the matter to the department’s independent inspector general, Michael E. Horowitz, and issued a statement clearly intended to mollify Trump: “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action.
The Justice Department rarely discloses when it has opened a criminal investigation, but it appeared Monday that Rosenstein’s move had satisfied Trump for the time being without opening a criminal investigation. Still, he established a significant new precedent by directly demanding that the department scrutinize specific actions.
“Yesterday made explicit what before was implicit, which is that Trump is crossing every line that protects the independence of the Justice Department,” said Neal Katyal, who drafted the department’s special counsel regulation in 1999 for the Clinton administration and served as acting solicitor general in the first term of the Obama administration.
Trump’s suggestion that Obama-era officials may have abused their investigative authority to spy on his campaign for their own political purposes complicates his demand for the Justice Department to investigate itself now. Still, senior law enforcement officials appointed by Trump already knew what steps the department took in 2016 and had not previously deemed those facts a sufficient basis to open an investigation, noted Bruce Green, a Fordham University law professor who wrote the article with Roiphe.
Legally, it is ambiguous and contested whether a president has the lawful power to order the attorney general to open or close a case — especially one involving his personal interests. But either way, as a practical matter, it may make little difference.
That is because attorneys general who view a president’s request or demand as unjustified can refuse it. But the president can fire and replace the attorney general. The primary check against a president abusing that power is the willingness of Congress to impeach him, as well as potential voter backlash.
The article by Roiphe and Green documented several scattered early examples of presidents who got directly involved in case decisions. George Washington, they wrote, ordered the prosecution of people involved in the Whiskey Rebellion by distillers in western Pennsylvania who rose up against the federal whiskey tax and threatened its enforcers. Washington later ordered that case shut down.
But such cases were rare and typically involved foreign affairs, Roiphe and Green wrote. And because the presidents’ involvement went unchallenged, the Supreme Court never weighed in about its legitimacy. The federal law enforcement system evolved over time; Congress created the Justice Department in 1870.
A century later, after the Watergate scandal, the norm of Justice Department independence became more entrenched. Senators have since routinely asked attorney general nominees at confirmation hearings questions eliciting promises to resist any effort by a president to intrude upon matters of prosecutorial discretion.
A few weeks before leaving office last year, President Barack Obama published a piece in the Harvard Law Review about the president’s role in advancing a criminal justice overhaul. In it, he nodded to the importance of constraints on presidential intrusion into specific Justice Department case decisions, citing the need “to avoid even the appearance of politicization” when it comes to administration of criminal law.
“For good reason, particular criminal matters are not directed by the president personally but are handled by career prosecutors and law enforcement officials who are dedicated to serving the public and promoting public safety,” Obama wrote. “The president does not and should not decide who or what to investigate or prosecute or when an investigation or prosecution should happen.”