Presidential control over federal prosecutors is an indispensable tool for protecting civil liberty. Impeding that authority is not the answer to its potential abuse. Accountability is. It would be much safer to entrust presidents to do their jobs if Congress recovered the capacity and will to do its own.
To be sure, Trump's case for firing the widely respected Mueller — which includes a silly assertion of conflict of interest stemming from a supposed dispute over fees at a Trump golf club — borders on the comical. But presidential control of federal prosecutions exists for a reason. Without it, we risk runaway prosecutors. Presidents and their minions may be unsympathetic targets, but prosecutors can equally harass powerless defendants. That means control of prosecutors is, like the pardon power, a presidential instrument for maintaining constitutional liberty.
James Madison once called putting the separate powers of government into the same hands "the very definition of tyranny." As Justice Antonin Scalia observed nearly 30 years ago in his dissent in Morrison v. Olson, untouchable prosecutors are uniquely disposed to become Inspector Javerts who would rather the heavens fall than justice go undone. That upright axiom — fiat justitia, ruat caelum — arises from a deep commitment to law. But as Daniel Patrick Moynihan aptly wrote, such a philosophy "ought to be more an abstract than an applied principle of government." Inflexible severity is prone to abuse and hostile to political judgment.
Of course, presidential power over prosecutors is also prone to abuse. Law enforcement does need a degree of independence from ordinary politics. But that independence must be maintained by the constitutional tension between the president and Congress.
The desire to insulate prosecutors from political control evokes the holy grail of the progressive movement of the early 20th century: the quest for government by independent experts. That risks a tyranny of expertise fundamentally at odds with the principle of republicanism, according to which the deliberate sense of the people prevails. Civilian control of law enforcement is no less important than civilian control of the military.
In a sense, presidents are similar to the press: The media cannot be restrained prior to publication, but it can be held responsible for abusing its freedom. The vehicles for presidential accountability include Congress's power of investigation, which often leads to criminal referrals and, in sufficiently grave cases, impeachment. Congress's partisan handling of the first and its excessive timidity about the latter — neither of which can be outsourced to a special prosecutor — do far more to license presidential misbehavior than the mere existence of executive authority over law enforcement.
There are dimensions of the Mueller investigation that may be criminal rather than political in nature. But to say that this is fundamentally a political problem is not to deny its legal character. It is to say that it involves the political judgment of the president controlled by the political judgment of Congress.
That is as it should be. Prosecution of crimes properly runs a constitutional gantlet to protect defendants. The first step is for elected officials to decide whether they will investigate and prosecute at all. Even in the course of facilitating the investigation against President Richard Nixon by ordering him to render up the Watergate tapes, the Supreme Court held that "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." Civil libertarians should not wish it otherwise.
One might reply that even if prosecution is discretionary, investigation should not be. But investigation can be abusive, too, especially when, as Scalia noted, that power is placed in the hands of those whose budgets, authority and continuance in office depend on uncovering malfeasance.
If the president abuses his discretion over prosecution, the Constitution leaves it up to Congress, not independent experts, to impose accountability. Congress could discourage abuse by showing that it is willing to use the ample powers of punishment at its disposal. This constitutional combat is inherently political, but politics rightly understood is not a toxin that would contaminate the Mueller investigation. It is a tonic that should be administered in stronger doses.
Read more on this issue: