The Justice Dept Must Clarify Who it Serves: The People or the President

On September 8, the Justice Department moved to replace President Trump’s private legal team with government lawyers to defend the president against a defamation lawsuit by author E. Jean Carroll, who has accused him of raping her in the 1990s. In a highly unusual move, the department argues that Trump was acting in his official capacity as president when he denied ever knowing Ms. Carroll, and as such, government attorneys should assume Trump’s defense. 

This raises a critical question: Should the Justice Department be defending a president accused of lying about a crime that is alleged to have occurred before he was president? 

At his confirmation hearings, Attorney General William Barr pledged to act independently of the White House. Yet Barr has consistently advocated that the attorney general should vigorously defend the president “by advancing all colorable arguments that can [be] mustered in support.” How can the U.S. attorney general act independently while also serving as the president’s sword and shield?

As I’ve noted previously, our nation’s founders originally intended for the attorney general’s office to be housed within the judicial branch—not the executive branch. It wasn’t until 1870 that the position moved to the executive branch and acquired its own department. An unfortunate consequence of our current arrangement is that presidents strangely oversee the office that oversees whether presidential actions are legal. Perhaps this is why Trump views himself (rather than the attorney general) as “the chief law enforcement officer of the country.”

Making the attorney general an executive officer subordinate to the president incentivizes attorneys general to act in pursuit of the president’s political agenda, rather than solely in accordance with the rule of law. This can be problematic, as I have found in my own research that abuse of power is comparatively more common in countries where the president and the attorney general are political allies. Within the last year, we have seen many such examples here in the United States.

In June, for instance, Barr chose to prioritize the president’s photo op at a church rather than the civil liberties of protesters, who were cleared from the president’s path by security forces using rubber bullets and a type of tear gas. 

In May, Barr’s Justice Department moved to drop all charges against former National Security Advisor Michael Flynn, who previously pleaded guilty to lying to the FBI. At the time, Trump tweeted that it “was a BIG day for Justice.” This prompted more than 2,000 former Justice Department officials from both Republican and Democratic administrations to sign an open letter urging Barr to resign.

In March, a Republican-appointed judge criticized Barr’s handling of the Russia investigation, which seemingly echoed Barr’s critics who argued that his public statements mischaracterized Mueller’s findings in a way that favored Trump.

Last November, Trump confidant Roger Stone was found guilty of lying to Congress and witness tampering. Career prosecutors handling the case recommended a sentence of seven to nine years in federal prison. After Trump tweeted that he “[c]annot allow this miscarriage of justice,” Barr overrode the sentencing recommendations, for which he was showered with Trump’s praise. Once again, a bipartisan group of more 2,000 former Justice Department officials signed an open letter urging Barr to resign.

Now that Barr is leveraging Justice Department lawyers to defend the president in a defamation lawsuit brought against Trump as a private citizen, taxpayers are effectively bankrolling Trump’s defense. Taxpayers will also be on the hook for any damages that could be awarded.

Americans have a right to know: Who is the Justice Department’s client? The people or the president? 

Joshua Holzer is an assistant professor of political science at Westminster College in Fulton, Missouri.