The core principle of American politics is that ours is a government of laws, not men.
Even so, our laws must be composed and administered by men and women, not angels, so that there is always an element of arbitrariness in law enforcement.
We pretend that this is not so, and our chief law enforcement agency, the "Department of Justice," (DOJ) is so labelled to proclaim our idea that no person is above the law, and, further, that our laws will be administered objectively and independently.
Generating further difficulty is the fact that the Department of Justice is a part of the executive branch, and the head of that branch, the president, has the power and the responsibility to hire and fire those in control of that department.
So strong is our notion that law enforcement should be untainted, however, that many appear to believe that the Department of Justice is an independent agency, and no president has the right to interfere with its operations.
This is nonsense, because presidents have always been intimately involved in their administration’s law enforcement efforts.
John F. Kennedy, for example, appointed his own brother, Robert F., as attorney general (head of the Department of Justice), and Barack Obama’s attorney general, Eric Holder, thought of himself as Obama’s "wingman."
Bill Clinton, as soon as he became president, demanded the resignation of all 93 U.S. attorneys, so that he could have his own people in those positions.
In spite of this, the current attorney general, William "Bill" Barr, has been lambasted because of the perception that he might be bowing to the wishes of President Trump, particularly with regard to the prosecution of Mr. Trump’s purported political associates, like Roger Stone.
Stone was convicted of several process offenses regarding congressional testimony and witness tampering. He is, though, a man advanced in years, and a first-time offender.
Thus, he might be expected to receive a rather light sentence, but a set of vindictive prosecutors recommended a sentence of from 7 to 9 years in federal prison, possibly amounting to the rest of Stone’s life in incarceration.
President Trump angrily responded on Twitter to this harshness, and, shortly thereafter, Attorney General Barr intervened to suggest a more lenient penalty.
Four of the prosecutors on the case then resigned, thus creating last week’s imbroglio.
The usual suspects called for Barr’s impeachment.
The president was concurrently condemned for interfering with the administration of justice. Irony was piled upon irony.
As an example, for former FBI-Director James B. Comey, who had been dismissed for usurping the functions of his boss, the attorney general, blasted Mr. Trump’s intervention.
Given that the president has the power to pardon those convicted of federal crimes, should it really be a cause of concern if he makes known his views on the administration of justice?
Law Professor Alan Dershowitz thought not, as he indicated that the sentencing recommendation for Stone was "outrageous," "immoral," and "utterly irresponsible."
The "country was in better shape," he added, now that those responsible had resigned.
Moreover, it was appropriate for the president to have commented, since "he certainly has the right to express his views," and, as President, he has the “constitutional authority to direct the Department of Justice to change its sentencing recommendations."
Still, perhaps understanding the value of maintaining the fiction of the independence of the Department of Justice, Attorney General Barr stated in an interview with ABC news that the president did not, in fact, dictate Barr’s decision to alleviate the recommended sentence for Mr. Stone, as Barr had made that call before the president’s comments, but that, nevertheless, Barr was finding it difficult to "do his job" in the face of presidential Tweets.
The anti-Trump media gleefully played this up as further evidence that the president had behaved inappropriately, and, indeed, since the president’s failed impeachment had been grounded in charges that Mr. Trump placed himself above the law, the president was, as usual, portrayed as a fascist threat.
The truth of the matter, of course, was that Dershowitz was right, the Stone prosecution was a miscarriage of justice, and as the week ended, it was disclosed that the jury foreperson in the case, an anti-Trump activist and former Democratic candidate for office, had been biased against Mr. Stone from the beginning.
A friend who is wise in the ways of Washington, D.C. suggested to me that Barr’s ABC comments had probably been cleared with President Trump — in advance.
If this were so, it might be due to the fact that both men are still committed to performing the necessary work of ridding the Justice Department of a set of miscreants left over from the last administration who are responsible for the political efforts which for three years have wrongly undermined our nation's 45th chief executive.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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