The Executive and the Rule of Law

Recent controversies over sentencing recommendations for President Trump’s associate Roger Stone, as well as a series of pardons issued by the president, have sparked debate surrounding presidential power over criminal justice. 

John Yoo and Kim Wehle unpacked that debate on last week’s episode of We the People. Yoo, a professor at Berkeley Law and former deputy assistant attorney general in the Office of Legal Counsel at the Justice Department, and Wehle, a University of Baltimore Law School professor who previously served as an assistant U.S. attorney in Washington, D.C., shared their insights on the recent controversy at the Justice Department, as well as broader questions about the rule of law and separation of powers.

Both Yoo and Wehle agreed that President Trump has the constitutional power under Article II to oversee the executive branch to a certain extent, and that, in his exercise of power, he has acted counter to certain “norms” of government. They disagreed, however, on whether it is necessarily problematic to flout some of those norms—many of which arose after Watergate as a result of President Richard Nixon’s attempts to unduly influence investigations by the Justice Department and the FBI into the Watergate break-in.

Wehle offered one perspective. “Particularly after Watergate, there’s a norm, of sort, of independence between the Justice Department and the president,” she said. “The idea being that, not only for fairness for individual defendants but also for the legitimacy of the department itself, to avoid the appearance of a conflict of interest, the president has stayed, at least in the public eye, out of decisions relating to individual prosecutions.” 

Explaining the controversy at the Justice Department, Wehle said that line prosecutors from DOJ made a sentencing recommendation for Stone, who was convicted of making false statements to the House Intelligence Committee, among other crimes. The president tweeted that he disagreed with the recommendation, “and then lo and behold, there was an intervention by the upper echelons of the justice department, through Attorney General Barr, to change that,” Wehle said. Yoo later responded that he believes there is no evidence that the president ordered that the recommendations be changed and, rather, Barr may have intervened in the sentencing before the president tweeted about it.

Wehle said Barr’s intervention was unusual. 

“It suggests that the president’s unhappiness with [the sentencing recommendation] was what made the attorney general make the change.”

She added that while the change may have been “justified potentially under the sentencing guidelines,” she finds it troubling nonetheless.

Yoo offered a different take.

“This norm of independence is something that has come up most strongly since Watergate, but is not in the Constitution," he said. "It’s actually not even in a statute. It is in Justice Department manuals. It is the view of a lot of career prosecutors who, of course, want to receive independence in their prosecutorial judgments . . . [but] this norm of nonpartisan law enforcement . . .  is not a constitutional principle. It is just a norm of what we think is good government and Trump is clearly trying to change that.”

He explained that since Trump is not technically acting illegally, the question is really whether what he is doing constitutes “good sense”—and that Trump may just be trying to place more political control over the federal bureaucracy, in realms including foreign relations as well as law enforcement.

Yoo also levied a different interpretation of how the Constitution, specifically Article II, Section 3, the “Take Care Clause,” applies to the president’s ability to control the executive branch functioning.

“The Constitution gives the president alone the responsibility and duty to take care that the laws are faithfully executed," he said. "As the Supreme Court itself has said several times, subordinate executive officers like the attorney general and prosecutors all are there to assist the president in carrying out that constitutional duty. So I think that is the number one—the president is the chief law enforcement officer.”

Wehle responded, “Of course, the president does have a lot of power under Article II, but he doesn’t have unlimited power.”

Yoo and Wehle also diverged on their interpretations of the Constitution’s pardon power, in light of the president’s recent issuance of pardons. Trump pardoned or commuted the sentence of 11 people convicted of fraud, corruption, or other offenses—including former Illinois Governor Rod Blagojevich, financier Michael Milken, former owner of the San Francisco 49ers Eddie DeBartolo Jr., and former NYPD Commissioner Bernie Kerik—in late February.

“The Constitution gives the president unfettered power to pardon,” Yoo said. “It has only two exceptions in it, for state crimes and for impeachments. So you would think if the Founders listed two clear exceptions and no other exceptions, that means the pardon power is fairly unfettered.”

Wehle countered that “the pardon power is there essentially as a check on an overbearing judiciary to basically show clemency and fairness to people that are unjustly imprisoned.”

However, she said there is an impression that President Trump is using the pardon power “to curry favor politically; that, you know, he will handout pardons to people that are financially and politically powerful or connected to people who are financially, politically powerful.”

Wehle said there’s a pattern among the pardons and the Trump administration’s intervention in the Stone sentencing.

“The perception is, whether accurate or not, that this interference is about doing favors for political allies of the man who's currently in office,” she said. “That’s a very different circumstance than a president making a determination as a matter of broader constitutional policy that a particular policy is improper for massive numbers of people.”

Yoo, however, said that it will be up to the people to decide whether they believe the president is exercising his power properly when they head to the ballot box.

“I think we’re looking for a turning to the Constitution to find solutions when really the solution is a political one in terms of what’s going to happen in Trump’s second term.”