The Judiciary was in the Constitution. But not the Department of Justice which was created in 1870 as part of the federal Executive Branch. But that doesn’t matter according to Harvard Law Professor Jack Goldsmith. Back in January he wrote this in Lawfare:

The most important guarantees of DOJ/FBI come not from the Constitution or statutes, but from norms and practices that since Watergate have emerged within the Executive branch.

Every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters.

In other words, make way for rules, protocols, regulations, and policies. Because of Watergate, you must get the hell out of the way and make room for Administrative State policy. As part of this broad perspective, Goldsmith attacks the Unitary Executive view and insists that the Executive should function like a mini-me of the Constitution: with competing factions divided against each other so that ambtion counteracts ambition within the Executive itself.

And the Executive is indeed showing some divisions, mostly between President Trump and AG Sessions, who responded to yet another Trump interview that sharply criticized Sessions with the AG responding with these words:

I took control of the Department of Justice the day I was sworn in, which is why we have had unprecedented success at effectuating the President’s agenda. While I am the Attorney General, the actions of the Justice Department will not be improperly influenced by political considerations. I demand the highest standards, and where they are not met, I take action.

Note the careful wording at a key point in his pushback and widely praised defense of the DOJ: will not be improperly influenced by political considerations.

Because the DOJ is in fact often, if not always, influenced by political considerations. Sometimes improperly so. Especially Obama’s DOJ during the electoral campaign for the 2016 elections and even more especially during the transition period. Acting AG Sally Yates, for example, ignoring Trump’s executive order in early 2017. And perhaps being involved in Associate Deputy AG Ohr’s illegal contacts with Chrisopher Steele. AG Lynch’s tarmac meeting with Bill Clinton, is another example as well.

Look, it’s doubtful anyone from the other side of the aisle are supporting Sessions because they think he’s a noble warrior. They detest Sessions’ values and his law-and-order policies. But they love that he’s in a struggle with Trump. So perhaps what we have is a floating unitary executive theory:

When we’re in power we suipport a strong and unified executive. When they’re in power, we support a weak and divided executive.

And of course, in this kind of environment, President Trump firing AG Sessions would almost certainly be a bad political move. Especially before the November elections, as Senator Lindsey Graham was careful to add when speculating about his former colleague’s future in Trump’s cabinet.

Perhaps we should think of it this way: A president firing his AG should require something close to “high crimes and misdemeanors” in order to be acceptable. Sessions might not have had to recuse himself according to some views, but had he not, we have no idea how the FBI – or even the DOJ under Sessions – would have proceeded with the Russia investigations.

Because indeed there were and are those in both the FBI and DOJ who would love nothing more than impeachment proceedings to be launched against Trump.

So the question becomes: how do you deal with a highly politicized DOJ and FBI? There seem to be two main roads you can take:

  • You take the high road and try to focus on process and hope that works. Like Sessions seems to be trying to do. OR
  • You get as partisan and political as your opponents in the FBI and DOJ and start firing people. Like Trump wants to do.

A separation of powers conundrum within the Executive Branch of government. This is a mess any way you look at it.