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Divesting the President of Power to Prosecute
Andrew Hyman

In February of last year, Mike Ramsey commented negatively here about the following theory of Professors Rebecca Roiphe and Bruce Green:
[T]he Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.
I agree with Mike that past practice by presidents “does not create an obligation."  There have been some developments in this area since Mike’s blog post.  For one thing, Professors Green and Roiphe have written a followup article titled May Federal Prosecutors Take Direction from the President?,” 87 Fordham L. Rev. 1817 (2019).  For another thing, it appears that then-White House Counsel Donald McGahn adopted the view of Professors Green and Roiphe, “saying that he [POTUS] had no authority to order a prosecution" (more about this below).
As far as I know, the leading article that takes the position opposite of Green and Roiphe (and which they cite) is Saikrishna Prakash, The Chief Prosecutor,” 73 Geo. Wash. L. Rev. 521 (2005).  Professor Prakash wrote:
Presidents Washington, Adams, and Jefferson believed that they had constitutional authority to direct federal district attorneys. In fact, each directed district attorneys to begin and cease prosecutions in . . . cases suffused with foreign affairs implications, cases involving the domestic political opposition, and even cases concerning the nation’s territorial integrity.
Supposing that the White House Counsel did in fact adopt the Roiphe-Green position and reject the Prakash position, that seems like it would be very big legal news.  However, given the rocky tenure of that particular White House Counsel, it is difficult to know whether the reports are accurate, and if so how much weight to give them.
If, as Prakash says, the President is chief prosecutor, that does not mean his subordinates in the Justice Department cannot threaten to resign rather than comply, nor does it mean that Congress cannot impeach a president for ordering wacky prosecutions that fail to result in convictions.  The honorable course would be to let the President know what his powers are, and what dangers await from exercising those powers, and if the President plunges ahead then he would likely be denied reelection, or be impeached.  Trying to save the country or protect the President by secretly disobeying lawful orders or by misleading the President would not seem like the optimal approach for a subordinate in the executive branch, though the Mueller Report and news reports suggest that, “Trump's aides were attempting to protect the president by not carrying out his requests.”  That is eerily reminiscent of an anonymous opinion piece in the New York Times (NYT) on September 5, 2018 (I blogged about it elsewhere).
For those who want more details about what exactly White House Counsel McGahn told President Trump about his prosecutorial power, I’ll now add a few more details.  The NYT had two distinct articles about this episode.*  Both articles include this identical material:
The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution….He did have the authority to ask the Justice Department to investigate, Mr. McGahn said, but warned that making such a request could create a series of problems.
To me, this seems unambiguous that Trump was told he had power to order investigations but not prosecutions.  The NYT also says that McGahn prepared a Memorandum on this subject for the President, but I am not aware it has been made public.
*There was the NYT article titled Trump Wanted to Order Justice Dept. to Prosecute Comey and Clinton” (November 20, 2018).  At the bottom of that Nov. 20 article is a note: “A version of this article appears in print on Nov. 21, 2018, on Page A1 of the New York edition with the headline: "Trump Sought To Have Foes Face Charges.”  As far as I can tell, the NYT stands by both versions in their entirety.
MICHAEL RAMSEY ADDS: I agree with Professor Prakash on this point and I don't have any doubt that the President can direct federal prosecutors to bring a prosecution (just as he can direct them to halt a prosecution).  There's absolutely nothing in the Constitution suggesting otherwise, and indeed it seems a central point of the take care clause that the President not only has this power but is obliged to use it (consistent with his duty of "faithful" execution).  The presumptive operational independence of federal prosecutors may be a good idea, but it isn't a constitutional obligation.
I'm a little less sure than Andrew that White House Counsel McGahn advised otherwise.  The linked Times article has the categorical statement Andrew quotes.  It also has the following longer discussion:

Mr. McGahn promised to write a memo outlining the president’s authorities. In the days that followed, lawyers in the White House Counsel’s Office wrote a several-page document in which they strongly cautioned Mr. Trump against asking the Justice Department to investigate anyone.

The lawyers laid out a series of consequences. For starters, Justice Department lawyers could refuse to follow Mr. Trump’s orders even before an investigation began, setting off another political firestorm.

If charges were brought, judges could dismiss them. And Congress, they added, could investigate the president’s role in a prosecution and begin impeachment proceedings.

Ultimately, the lawyers warned, Mr. Trump could be voted out of office if voters believed he had abused his power.

All of these points are true.  But they do not say that the President lacks the power to order investigations or prosecutions.  They only say it would be a bad idea politically and institutionally to use it.  (I assume the memo also detailed the history of presumptive independence of the prosecutors; it's less clear whether the memo concluded that this history established a constitutional obligation.)  In any case, I don't see anything nefarious (from a constitutional perspective) in these events.