Quote:
Originally Posted by Clovis8
I would snap bet my net worth Trump could not define Seperation of Powers. I would be my life he doesn't know it is encoded in the Constitution.
Fair enough, though prosecution is an executive function. It's just that post-J Edgar Hoover and post-Watergate there were barriers erected, or strengthened, between the executive and prosecutorial functions. Trump has just crapped on them daily since he began his campaign.
Here's the first serious source I found on the issue. I am not endorsing it, but it suggests serious people debate whether limitations on prosecutorial powers are constitutional.
Prakash, Sai, "The Chief Prosecutor" (2005). University of San Diego Public Law and Legal Theory Research Paper Series. 30.
Quote:
Since Watergate, legal scholars have participated in a larger debate
about the President’s constitutional relationship to prosecutions. In
particular, many legal scholars sought to debunk the received wisdom that
prosecution was an executive function subject to presidential control.
Revisionist scholars cited early statutes and practices meant to demonstrate
that early presidents lacked control over prosecution. Among other things,
scholars asserted that early presidents could not control either the federal
district attorneys or the popular prosecutors who brought qui tam suits to
enforce federal law. In fact, many of the revisionist claims are wrong and
others are beside the point. Despite the lack of statutory authority over the
district attorneys, early presidents directed the district attorneys in all sorts
of prosecutorial matters. As authority for their superintendence, presidents
cited their constitutional power over law execution. Moreover, there is no
evidence that the statutes authorizing qui tams were meant to preclude
presidential control over the qui tam suits. If English practice is any
indication, the chief executive was understood to enjoy a great deal of
control over popular prosecutors. Though there are many reasons to
divorce the president from prosecution, this scheme does not have the
imprimatur of early constitutional history. As a matter of the
Constitution’s original understanding, constitutional text, structure, and
history establish that the President is the constitutional prosecutor of all
federal offenses whether prosecuted by official or popular prosecutors.
http://digital.sandiego.edu/cgi/view...41/&path_info=
Some post-Nixon details:
Quote:
Senator Sam Ervin, Chairman of the famous Senate Select Committee to Investigate Campaign Practices, championed an independent Department of Justice, claiming that “[t]here is not one syllable in the Constitution that says that Congress cannot make the Justice Department independent of the President.”5
On NBC’s Meet the Press, presidential candidate Jimmy Carter actually pledged to establish an independent Department of Justice, complete with an attorney general with a term longer than the president’s. In a statement submitted to Chairman Ervin’s Senate Judiciary Committee, former special prosecutor Archibald Cox opposed Ervin’s legislation as unconstitutional because it deprived the president of removal authority over executive officers. He also doubted the constitutionality of
vesting in officials independent of the president “a very large part of the duty . . . ‘to take care that the laws be faithfully executed’ . . . . Civil suits and criminal prosecutions are major weapons in the execution of the laws.”7 Columbia Law Professor Herbert Wechsler agreed, noting that he did not see how the president could be held accountable for faithful law
execution if the function of law execution would be vested in officers independent of the president.8
Although such drastic measures went nowhere, in 1978 Congress enacted the historic, though more modest, Ethics in Government Act. The Act required the attorney general to seek the appointment of an independent counsel whenever there was specific and credible evidence that high-level executive branch officials may have violated the law.10
While the attorney general could remove the independent counsel, the Act limited the grounds of removal.11
[Note that the independent counsel law was not renewed post-Clinton, but new DOJ regulations governing the appointment of special counsels were put in place. The regulations could be sorta messed with, but I doubt they could be to the extent that Trump could fire Mueller, and anyway he would misunderstand the details.]
Last edited by simplicitus; 04-22-2018 at 10:01 AM.