Rep. Matt Gaetz’s nomination as Attorney General by President-elect Donald Trump has reignited discussions about the myth of Justice Department independence. Trump, in a Truth Social post, hailed Gaetz as the leader who would “end Weaponized Government, protect our Borders, dismantle Criminal Organizations and restore Americans’ badly-shattered Faith and Confidence in the Justice Department.” However, the announcement has triggered a firestorm of criticism from Democrats and some Republicans, who argue that Gaetz’s appointment threatens the Justice Department’s supposed impartiality.
The controversy draws attention to a fundamental constitutional reality: the Department of Justice ultimately serves the president’s agenda. Critics of Gaetz’s nomination question whether his leadership could further politicize the DOJ, but constitutional scholars argue the idea of an “independent” DOJ was flawed from the start.
The Origins of the Independence Myth
The notion of Justice Department independence can be traced back to the Watergate scandal and the infamous,
“Saturday Night Massacre”, on October 20, 1973. On that night, President Richard Nixon ordered Attorney General Elliot L. Richardson to fire special prosecutor Archibald Cox, who was investigating the Watergate burglary. When Richardson refused and resigned, Nixon issued the same order to Deputy Attorney General William D. Ruckelshaus, who also resigned. Solicitor General Robert H. Bork eventually carried out Nixon’s directive.
This series of events led to widespread outrage, culminating in Nixon’s resignation and the passage of the Ethics in Government Act of 1978. A provision within this act authorized independent counsel investigations, setting the stage for a legal battle over presidential authority.
Scalia’s Prophetic Warning
In 1988, the Supreme Court addressed the constitutionality of independent counsel provisions in Morrison v. Olson. The majority upheld these provisions, arguing they did not completely strip the president of control. However, Justice Antonin Scalia dissented, delivering a landmark opinion. Scalia argued that prosecutorial power is inherently executive, and any reduction of the president’s authority over such power is unconstitutional.
he allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf, Scalia wrote, cautioning against the erosion of the president’s authority under the guise of independence.
Ultimately, Scalia’s dissent proved prescient. Congress allowed the independent counsel statute to expire in 1999, ending an era marked by high-profile investigations, including Kenneth W. Starr’s probe into President Bill Clinton.
The Unitary Executive Theory: A Constitutional Imperative
The unitary executive theory, which holds that the president oversees all executive branch functions, underscores the constitutional argument against DOJ independence. While a president cannot personally enforce every law, they must retain the authority to direct their subordinates and remove those who fail to comply.
“If the buck does not stop with the president, what on earth is the point of all the billions of dollars’ worth of drama we go through as a country every four years to elect one?” this argument challenges the practical and constitutional basis of DOJ independence.
Restoring Constitutional Clarity
As the debate over Gaetz’s nomination unfolds, it sheds light on the deeper issue of restoring clarity to the Justice Department’s role. The controversy surrounding his appointment may ultimately serve as a turning point, forcing the nation to reconcile its ideals with constitutional realities.
Whether Gaetz’s critics or supporters prevail, the myth of DOJ independence is unlikely to survive unscathed.
