This column is misleading regarding several legal (constitutional & statutory) questions (see tweets 3-11, below), but none of that really matters much. @JoshMBlackman notably *doesn't* argue ... /1
washingtonpost.com/outlook/2020/0…
washingtonpost.com/outlook/2020/0…
2/ ... that anything in the letter of the 2000+ DOJ employees is mistaken (he spends most of the column addressing a straw man argument the attorneys don't make); and, most importantly, he *agrees* that "the president should stay out of sentencing decisions, ... /2
... especially those involving his friends"--thereby confirming the principal point of the DOJ employees' letter.
FWIW, however, here are some of the column's dubious legal claims: /3
FWIW, however, here are some of the column's dubious legal claims: /3
i. Trump’s “constitutional authority” allows him to “punish his enemies or reward his friends.”
Well, no—or at least he can't do so *because* they are his friends or enemies. That would be a violation of the POTUS’s obligation to take care the law is faithfully executed. /4
Well, no—or at least he can't do so *because* they are his friends or enemies. That would be a violation of the POTUS’s obligation to take care the law is faithfully executed. /4
ii. “[T]he decision whether and how to prosecute someone ultimately belongs to the president.”
Actually, Congress has conferred that authority on the Attorney General, and it’s an open question whether the statute reserves a implied “directory” authority to the POTUS. /5
Actually, Congress has conferred that authority on the Attorney General, and it’s an open question whether the statute reserves a implied “directory” authority to the POTUS. /5
iii. Under Article II of the Constitution, “all of the executive powers belong to [the POTUS].”
Nope. Indeed, it’s been common ground since the founding that the POTUS can’t personally exercise authorities Congress has assigned to other officers ... /6
Nope. Indeed, it’s been common ground since the founding that the POTUS can’t personally exercise authorities Congress has assigned to other officers ... /6
—which is why even Jefferson didn’t try to do so in the case Josh cites. (See pp. 24-30 of this brief I recently filed:
supremecourt.gov/DocketPDF/19/1…) /7
supremecourt.gov/DocketPDF/19/1…) /7
iv. “[T]he president delegates some of those [executive] powers to the Justice Department — specifically, prosecutorial discretion for criminal matters.”
No, that delegation (actually, an assignment of authority) is effected by statutes *Congress* has enacted. /8
No, that delegation (actually, an assignment of authority) is effected by statutes *Congress* has enacted. /8
v. “[I]f the president chooses to intervene, the attorney general has two options — comply or resign.”
Not necessarily so—and certainly not where, as here or in the Travel Ban case (or Nixon’s directives to Archibald Cox), the intervention is plainly unlawful ... /9
Not necessarily so—and certainly not where, as here or in the Travel Ban case (or Nixon’s directives to Archibald Cox), the intervention is plainly unlawful ... /9
... or a breach of the POTUS’s constitutional duty. In such a case the officer can refuse to comply, knowing, of course, that it might (as in @SallyQYates' case) lead to removal. /10
vi. Pardoning Stone “would inarguably be within [Trump’s] constitutional authority.”
Actually, it is “arguable.” To be sure, there might not be a way to undo such a pardon, but if Trump exercises that authority for impermissible reasons, he’ll be acting unconstitutionally. /11
Actually, it is “arguable.” To be sure, there might not be a way to undo such a pardon, but if Trump exercises that authority for impermissible reasons, he’ll be acting unconstitutionally. /11
I will say this for Josh's post: His ahistorical views of the President's unbounded authority accord with those of the current Attorney General. I discussed Barr's perspective here:
justsecurity.org/61975/legal-ar… /12
justsecurity.org/61975/legal-ar… /12
