Politicizing Prosecution: The Department of Justice, Separation of Powers, and the Executive

From Trump’s inaugural address to Biden’s sweeping use of presidential pardons, the threat of ‘politically motivated prosecution’ is increasingly normalized in American politics.  Lawmakers have long feared that a sitting President could weaponize the Department of Justice against their political opponents. The Supreme Court has never clarified how much control the President has over the Department of Justice and Attorney General. While the DOJ has internal processes stressing a ‘culture of independence,’ there are no laws establishing a formal boundary between the agency and the president.

The Nixon administration argued that a sitting President could direct the DOJ’s actions on individual prosecutions. The Trump administration expanded this claim, arguing that the President had absolute authority to direct prosecution and dictate the actions of the DOJ. The Biden administration, with Attorney General Merrick Garland, tried to avoid allegations of partisanship, even prosecuting the sitting President’s son. Join Democracy Fellows Omar Noureldin and Amy Gardner as they discuss the importance of the DOJ in safeguarding the separation of powers and democratic institutions with Prof. Aziz Z. Huq and Prof. Tom Clark. This conversation will be moderated by CEG Executive Director Sadia Sindhu.