Some people still think the Department of Justice is independent of the president. This is a fundamental misunderstanding of how the American system of government works. The Department of Justice works for the President as part of the cabinet. It is not an independent agency. It is no more independent than the Department of State or the Department of Energy.
Congress writes laws, and the President signs them, though vetoes can be overridden. The President’s primary job is to enforce the law. Through this the President has departments, the original 4 secretaries are the Department of State, Department of the Treasury, Department of Defense, and the Attorney General. These four departments and 11 more report directly to the President in cabinet meetings.
There are also a few other agencies and departments separate from these departments, and there are also some agencies which do not report directly to the President, such as the Federal Reserve. Some agencies like the Congressional Budget Office and the Library of Congress report directly to Congress. But the Department of Justice is part of the cabinet.
The Attorney General is the principal legal advisor to the President. Always has been, always will be. We need to not pretend she is independent. The Attorney General has never been independent. The word independent does not appear even once in the office’s Wikipedia page, but president appears 8 times. Given how the Department of Justice is part of the cabinet it is unreasonable to expect the Department of Justice to investigate the President. The Attorney General would literally be investigating her own boss. That is unreasonable, so that is not how our government has ever worked.
If you read into the Watergate Scandal you will quickly realize that it was not the Department of Justice which investigated Watergate, but a select committee appointed by the Senate. The Attorney General was one of the people being investigated, he was not part of the investigative team. In fact, Attorney General John N. Mitchell served 19 months in prison as a result of the scandal.
The Attorney General office was created by the Judiciary Act of 1789 to be the government’s chief lawyer. So when the Government goes to court, the Attorney General or an attorney in her department will generally represent the government. The entire role of the office is to defend the executive branch in court and provide legal advice to the president.
Point is, this idea that the Department of Justice will investigate the Executive Department is laughable and shows a fundamental misunderstanding of how our government works.
The way the law is enforced in the United States is the courts determine guilt. The President has no say in this matter. So the courts have the ability to limit the President’s power, telling the President what act he can and cannot do. The President is required to follow the courts. This is the foundation of our system of government.
But what happens when the President violates the law, is found guilty by the courts, and decides that he will just continue his corrupt actions? Well, that’s an impeachable offense. This is where the American system of government has a clever solution to solve the problem.
Since the President appoints judges who are approved by congress, our founding fathers realized that the court system could not be trusted to do an impartial investigation of the President, neither could they be trusted to be impartial in determining the President’s guilt. If they had done it that way, Presidents would deliberately pick corrupt judges who would be the least likely to rule against him. It would be too prone to corruption, so we don’t do it that way. Instead, only Congress has the power to remove the President from office before his time is up. The President has no say in who is elected to Congress, and everyone is represented in that branch, so it is the most fair way to do it. Congress has the right to setup committees to investigate the President’s behavior, they even have the power to impeach justices, even though this has only happened once. In some ways Congress is the most powerful branch of government except for how the President has the military behind him. This keeps the system balanced so no one person has too much power.
We are in multiple constitutional crises right now. I am keeping a tally of Trump’s most egregious impeachable offenses here. Congress needs to impeach and remove the President, and they will not do so, so we are down to our next check on power which comes down to the states.
There has been a long-established precedent that federal law trumps state law. This is rooted in the supremacy clause of the fourth article of the constitution. There are many court cases reinforcing this interpretation.
But here’s where we get into an interesting question. If the President instructs a federal officer to do something illegal within a state, does the state have the right to enforce federal law over a federal agent within that state’s borders?
So if a federal ICE officer who is under the executive branch abducts a US citizen from the streets of Jersey City, New Jersey, does the state government of New Jersey have the right to sue that officer on behalf of the citizen who was abducted? Not suing the executive branch deliberately, but instead suing the individual officer who has violated the law.
We should not charge the federal government directly, that will go straight to the federal courts, but if Democratic state governments directly charged federal agents for violating state law within their borders, could they issue a summons for those officers and charge them under state courts for violating the rights of the state’s citizens? The only possible reason they should not is qualified immunity, but qualified immunity should not exist. If you don’t want to do the time, you shouldn’t have done the crime, right?
So then if the federal officer then appealed to federal court and the federal court ruled the officer did violate the law, then they could be arrested in a state prison where the President has little to no power.
With stacked federal courts, a corrupt president, and a congress which is unwilling to do any oversight over the executive branch, our last remaining check on the president’s power is to enforce the law through the state courts.
It’s just a thought, but I think this is a realistic strategy, while expecting the Attorney General to investigate her boss is fantasy land even under the cleanest administration.