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Derived from an earlier question DOJ's impossible job, the question is based on the comment:

"Trump claims that he has the absolute right to micromanage the AG and he is probably correct."

The comment string on this become Q&A has become very long, so it might be appropriate to examine this assertion (the right to micromanage) as a principle question.

In asking this question, I've taken some liberty to infer that the commenter intended to say 'micromanage the DOJ' and conflates the concept of rights versus powers.

In keeping with the basic premise of politics.se, is there any factual/legal basis to assert that the President has a right or power to "micromanage" civilian employees of the DOJ?

As an example, President Trump made it abundantly clear that he was displeased with Mueller and his team. And yet, Trump did not dismiss anyone on the Mueller team, which he certainly could have if the President has the right or power to micromanage the DOJ.

Obviously the President has the right and power to unseat the manager of the DOJ, On that score there is no question. That is not the question I'm interested in. Rather, does the President have either a right, power or authority to countermand the AG's decision, while keeping the AG in place (effectively making the President the Manager of the DOJ staff)?

Philipp
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BobE
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    The president's power to dismiss the AG implies that the president may order the AG to take a specific course of action, including issuing specific orders to subordinates. Is the distinction between that and the president's issuing direct orders to subordinates of the AG significant to this question? – phoog Feb 18 '20 at 15:58
  • Doesn't it depend on motivation? Shooting a gun on a range is legal, but that doesn't mean you can shoot people, even you have a right to shoot a gun. – dandavis Feb 18 '20 at 16:45
  • Are there any restrictions on who can be hired to head the DoJ? Can the president just put a puppet in place if they want to control the department? – Jontia Feb 18 '20 at 17:49
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    @phoog -Yes, for the purpose of this question there is a distinction. IMO micromanagement of the DOJ would include the President ordering a line prosecutor to argue a case in a certain manner, or order a prosecutor to decline to prosecute on a grand jury indictment. – BobE Feb 18 '20 at 18:15
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    @phoog (cont) What I'm looking for is there any factual and or legal (including case law) that imparts such authority to the president? If the answer is no, then the followup question obviously is can the President thwart that by using a puppet .. But let's see if we can get through the first question. – BobE Feb 18 '20 at 18:24
  • @Jontia one restriction, perhaps the only one, is that the appointee must be confirmed by the senate. – phoog Feb 18 '20 at 19:32
  • @phoog and this confirmation can be filibustered? – Jontia Feb 18 '20 at 19:35
  • For what it's worth, I can find a lot of information about executive departments' rulemaking procedures, less about non-rule decisions like prosecutions. – Bobson Feb 18 '20 at 20:16
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    Related: Is the US president the ultimate law-enforcement officer?. – Rick Smith Feb 18 '20 at 20:47
  • @phoog A puppet can be installed by firing the current AG and appointing an acting AG. Acting appointments do not need Senate confirmation. – doneal24 Feb 18 '20 at 23:21
  • @doneal24 that is true enough. Do you know whether there is a limit to the duration of an acting appointment? I vaguely recall hearing something of the sort, but I do not remember the details. – phoog Feb 18 '20 at 23:22
  • @phoog 210 days, with the possibility of an additional 210 days under certain circumstances. – doneal24 Feb 18 '20 at 23:24
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    Nixon's Saturday Night Massacre comes to mind as one example of what can happen when the President tries to order the AG around. – doneal24 Feb 18 '20 at 23:26
  • @BobE, rather than concern over definition of micromanagment, a much more relevant question would be "would the President ordering a line prosecutor to argue a case in a certain manner constitute an abuse of authority?" The answer to that is yes, it certainly could, but it depends on intent (which is different from motivation.) – Burt_Harris Feb 19 '20 at 21:46
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    @Burt_Harris I think I understand where you're going, that ordering a line prosecutor to decline to prosecute someone simply because that someone is a political ally (intent to protect friends) would be corrupt. However I'm asking a more fundamental question that precedes that circumstance. Does the president have the authority to interfere at all - regardless of intent or motivation. Consider the Justice Manual - [https://www.justice.gov/jm/jm-1-8000-congressional-relations#1-8.100 ] wherein the DOJ promulgates rules to insulate the Department from political influence. – BobE Feb 19 '20 at 23:09
  • A question of "Authority" is a matter of a formal right or (sometimes) informal power, not one delving into judgment calls. In a hierarchical organization, a subordinate can disagree with the judgement of a superior, but must generally acknowledge the superior's authority to make the decision (if it exists.) Otherwise, the subordinate committing insubordination, which is grounds for removal. – Burt_Harris Feb 20 '20 at 00:06
  • @ in theory. So why didn't the president fire the lawyers working for mueller. – BobE Feb 20 '20 at 00:32
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    Probably because the President's counsel advised him it could subject him to impeachment. – Burt_Harris Feb 20 '20 at 00:37
  • So, the president was afraid if he fired Lisa Page - he would precipitate an impeachment? Recall that you seem to be arguing that the president manages the AG and the AG manages special council and special council manages his staff, so insubordination (or breach of DOJ rules) by a staff member can rightfully trigger dismissal by the president. – BobE Feb 20 '20 at 04:56
  • Relevant quote: “To have a right to do a thing is not at all the same as to be right in doing it.” G.K. Chesterton – Peter Feb 21 '20 at 14:26

2 Answers2

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Yes, probably, particularly given the current composition of the U.S. Supreme Court. But this is a tricky question as it is both hypothetical, and it can be confused with questions about the advisability or legality of specific acts. The fact that someone has a right does not imply it insulates him from legal consequences, (e.g. I have a right to free speech, but yelling fire in a crowded theater can still subject me to legal consequences.)

The general rule, as expressed in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), is:

A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.

This seems to be called the Chevron deference rule; that's a bit odd because they didn't defer to Chevron... Lawyers can argue isn't a hard and fast rule, and that seems to be true, but under the current (more conservative) court, it isn't likely to be ignored.

Reasoning

A key fact is that the DOJ is an Executive Department, and the Executive Branch of government has authority that is vested a strict hierarchy. The DOJ is distinct from independent agencies, like the Federal Election Commission, where the authority of the President is more restricted. There can be have been exceptions to the general rule for independent agencies, which are governed by board which the president can only remove for "good reason."

The president's authority over the executive departments flows from the first sentence in the U.S. Constitution, Article II section 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows: ...

This choice to create an separate executive branch with authority vested through a single individual (rather than a commission or committee) was explicit and well documented by the framers of the constitution.

History

Under the Judiciary Act of 1789, the statutory authority of U.S. Attorneys were independent of the Attorney General, and predate the Department of Justice but the subsequent 1870 act to establish the Department of Justice made clear that it was an executive department, establishing that the U.S. Attorneys became subordinates to the A.G. in that organization.

In a case that could reasonably be labeled "micromanagement", in 1893 Grover Cleveland dismissed a U.S. Attorney, without explanation, and without going through the Attorney General. It took till 1897 for the controversy to be resolved. The Supreme Court, in a surprisingly clear ruling said:

The President has power to remove a district attorney of the United States when such removal occurs within four years from the date of the attorney's appointment and, with the advice and consent of the Senate, to appoint a successor to him.

Parsons v. United States, 167 U.S. 324 (1897) with "four years being the period of appointment for U.S. Attorneys.

In a later case, involving a postmaster, the court said:

The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress.

Myers v. United States, 272 U.S. 52 (1926) at 119.

Conclusion

None of this answer should be taken to mean that it is a good idea for a President to intervene in criminal prosecutions. IMHO, if it were done as an official action, it could be argued it was an abuse of power, but given this history arguing a president lacked the power seems imprecise. The important thing is that having an authority does provide a defense against a charge of abuse of authority or conflict of interest, but that wasn't the question asked.

P.S. For bipartisan thoughts about the complexity this situation, try this lawfareblog entry: Could Congress Simply Codify the DOJ Special Counsel Regulations? I won't quote as it doesn't directly answer the original question, but it may relieve you if you find my answer disturbing.

Burt_Harris
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    But the DOJ, like the vast majority of the rest of the executive branch, is a creation of Congress via laws. The laws prescribe specific people, who are not the President, as having various powers. The President is largely only granted authority to appoint and fire certain high ranking members (only), and issue policy directives over them. It is, I think, untested by the courts if the President acquires all powers granted to others within his branch by virtue of being its head. Proponents of the Unary Executive interpretation certainly think so. Many of which appear to have Trump's ear. – zibadawa timmy Feb 19 '20 at 00:20
  • I think you mean the "Unitary Executive", but you would be better off by citing specifics in your own answer. P.S. I'm not arguing that congress cannot pass legislation granting the executive limited management authority (as in independent agencies), but that legislation creating DOJ did not create an independent agency. – Burt_Harris Feb 19 '20 at 01:42
  • Regarding the word choice: "right", and "micromanage" are direct quotes from the commenter of the previous question, I did not choose those words. I'm sorry if they lack the quality of neutrality you desire. Now, while you have cited that the president has authority to dismiss a select group of officers without consent, you have not addressed if the president has the authority to dismiss (for example) a line prosecutor unilaterally. (since you raised the issue) – BobE Feb 19 '20 at 03:28
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    As I understand it, the President lacks the authority to remove state & local officials (which most prosecutors are), but for DOJ officers the Meyers decision indicates would have the authority. What a President can do "unilaterally" might be arguable, and removing someone without going through both staff and a chain of command would be highly unusual, and thus is highly unlikely to occur. – Burt_Harris Feb 19 '20 at 03:56
  • @Burt_Harris - yes I should have been more specific- "dismiss a federal prosecutor" was what intended, and by the way there are hundreds of them, perhaps over a thousand (but that's not germaine). That cleared up, if the president had the authority to fire Mueller and his team ( recall that they were DOJ employees that reported to Rosenstein) why would he have not done so. – BobE Feb 19 '20 at 04:53
  • @BobE: Keep in mind that at the time, many Republicans in Congress had expressed that the firing of Mueller would be legally in the President's authority but would be the Red Line for them that would force them to side with Democrats against the President. Rosenstein had a reputation in D.C. for being fairly by the books and was appointed as a Federal Prosecutor by President George W. Bush and Obama (one of the few Bush era prosecutors to be appointed by Obama.). Suffice to say that just because Trump COULD fire Mueller and Rosenstein, doesn't mean he SHOULD fire them.+ – hszmv Feb 19 '20 at 12:43
  • @BobE: +And their continued employment was political (and whoever managed to talk Trump down from doing it every time he was angered by the media's reporting on the investigation is a miracle worker IMHO. I have no doubt Trump would have done it if not for someone explaining the optics of it to him several times a day.). – hszmv Feb 19 '20 at 12:45
  • @hszmv - the point you raise - "Republicans in Congress had expressed that the firing of Mueller [by the president] would be legally in the President's authority..." Now that approaches part of the answer I'm hoping to find, specifically what would these congressmen have cited as the President's ** legal** authority? Could or did any of the congressmen ever cite the basis of that authority? (or was it just political posturing, Just blah, blah, blah) – BobE Feb 19 '20 at 15:04
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    @BobE: I'll have to dig in my way back machine for specific statements. The general concensus I heard from multiple Republican members of Congress is that while the President has the right to fire them, they were less comfortable with the optics of the President firing them. At best, the situation could be that the President couldn't fire Mueller directly, but he could fire Rosenstein for not firing Mueller and replace him with someone who would fire Mueller. Again, I'll have to get back to you on specifics because I'm not sure of the rules underwhich Mueller was hired. – hszmv Feb 19 '20 at 15:11
  • @hszmv, I'll be searching also, my recollection was that Rosenstein was appointed by the Pres and confirmed - ergo he was vulnerable to presidential dismissal - whereas Muller -hired by Rosenstein was subordinate to Rosenstein and was more akin to a DOJ employee (and perhaps beyond the DIRECT reach of the president). And of course Mueller's team , some 20 lawyers and additional support personnel would have been more removed from DIRECT presidential dismissal. - At least that's the way I recollect it !! – BobE Feb 19 '20 at 16:53
  • You shouldn't compare Muller to an ordinary federal prosecutor. Muller was appointed a Special Counsel under 28 C.F.R. 600, and 600.7 provides special limitations on removal and supervision of a Special Counsel. – Burt_Harris Feb 19 '20 at 20:29
  • I've added the Chevron "deference rule" in response to @CGCampbell on another answer. – Burt_Harris Feb 22 '20 at 04:39
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Let's start first by pointing out that there is (currently) no true answer to this question. Most of the powers of the Executive, Legislative, and Judicial branches are established by convention and practice, and are not explicitly spelled out in constitutional or statutory law. When the framers created the constitution, they intentionally left it loose and general: a literal framework, that future generations would have to fill out. And for the most part that 'filling out' has been done through practical, mutual agreement between the branches.

It has traditionally been the convention that presidents do not micro-manage the various departments of the executive branch, mainly because presidents are elected officials: non-expert politicians whose primary duty (assumedly) is to set policy. Department heads, by contrast, are (assumedly) specialists and professionals who are far more qualified to run the day-to-day business within their departments than any outsider. Presidents set agendas and directions, department heads create the implementations for such within the constraints of their professional knowledge and departmental mission, and then staffers carry out those implementations. That's a sensible system, if a bit bumpy at times. Non-elected careerists often have a different conception of their department's mission than elected officials, and department heads — who are generally appointed by an executive — often have to walk a cautious political line to both implement the president's goals and keep their department in a healthy state. But it's a system that has worked reasonably well in most cases.

This type of micro-managing also flies against the philosophical roots of our system, which has always had an explicit imperative against the accumulation of power in any single office. The founders designed our system to spread power over many, many offices and many, many people because they were concerned about the rise of tyranny. This is particularly true of judicial, military, and police powers, which the founders tried to distribute as widely as possible. A president who gathers the powers of investigation, judgement, and military force under his direct and personal control is no longer a president; he is a dictator.

Trump believes that he has the right to do whatever it is he wants to do at any given moment in any given situation. This has little to do with him being president; he's a clinical narcissist, and narcissists feel privileged and entitled by nature. I do not know if he knows of or understands the established practices and conventions of our political system or the reasons behind them, but even if he does he surely does not believe they apply to him in any way, shape, or form. And because he has managed to push sycophants and attack dogs in as heads of many important departments (as well as grooming Mitch McConnell and Lindsey Graham as more-or-less mindless followers in the Senate), he may succeed in imposing his 'right' to micromanage and accumulate power on the nation, to everyone's (except his) detriment. If that precedent gets set, then yes, this will be a 'right' of the executive branch, and the US will transition fully into the status of a failed democracy.

Ted Wrigley
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  • Cleanding out my past comments. The argument remains histrionics, all emotion no facts. It retains the invectives and slanted wording like "attack dog", despite the author claiming he had "done" what I suggested. – Burt_Harris Feb 22 '20 at 02:20
  • When something is not explicitly spelled out in statutory law, it does not mean there is no true answer, it means a court may find ambiguity or "no clear intent". See Chevron in my answer. – Burt_Harris Feb 22 '20 at 05:00