The 2024 Executive Power Survey – Enforcement Independence

September 15, 2023

2024 Executive Power Survey

Where the Presidential Candidates Stand on Law Enforcement Independence

Especially since Watergate, there has been an institutional norm of independence from White House control at the Justice Department and the Internal Revenue Service. The idea is that while a president can set broad policies, he or she should not get involved in specific auditing or criminal cases or auditing decisions except in rare situations that would affect foreign policy. This is especially seen as true for cases that affect a president’s personal or political interests, such as an investigation into himself or his political opponents.

As a matter of law, do you think the president has the power to direct the Justice Department to open or close specific criminal investigations, bring or drop charges against specific people, or appoint or remove a special counsel? Do you think the president has the power to direct the I.R.S. to start or shut down a specific audit? Regardless of what the law may permit a president to do in the abstract, as a matter of good governance, would you pledge if elected to obey the post-Watergate norm that presidents do not involve themselves in specific law enforcement decisions?

I appointed the individuals leading the Department of Justice based on their devotion to enforcing the law, their professionalism, experience and credentials, their dedication to pursuing equal justice for all, and their commitment to Department of Justice independence in the performance of their law enforcement responsibilities. Under their leadership, the department has been committed to restoring the honor, integrity and independence of D.O.J., and to making decisions indisputably guided only by the facts and the law — not politics.

As I recently stated, I made a commitment when I was elected that I would not in any way interfere with the Justice Department’s prosecutorial decisions, and I have not spoken with the attorney general about any specific case.

There is no proscription in the Constitution against the president abusing his power in this way. But it is an abuse of power.

I will depoliticize the Department of Justice, the I.R.S., the F.B.I. and other agencies. They should enforce the law impartially. They should not be used to pursue political vendettas, harass people on a president’s enemies list or serve any sort of partisan agenda. This is a matter of ethics and good governance.

I do not believe the president should have the power to direct the Department of Justice to open a criminal investigation, but I think it appropriate for her to share her perspective. I would make clear my wish, for instance, that the civil rights of transgender Americans be vigorously adhered to (I see them as a targeted group, and would grant them special protection status) and any violations prosecuted.

Yes, I do believe the president should have the power to close specific criminal investigations — within limits. I would definitely direct the Department of Justice to drop all charges against Julian Assange.

Regardless of the power, the president should not interfere in specific investigations (with limited exceptions in case of foreign policy implications).

Whether or not a president has the power to do so, they should not start or shut down a specific audit. My views on the necessity of investigative independence for the D.O.J. would also apply to the I.R.S. The emphasis is on specific cases versus broad policy priorities. Of course, the president should be engaged in policy setting in the executive branch.

As the head of the executive branch, the president has broad authority over the executive’s various departments and agencies. But all must be treated equally under the law, and the recent whistle-blower revelations of politically motivated interference in the investigation of Hunter Biden indicate an abuse of authority for which the American people will not stand.

As president, I will ensure every law enforcement agency is properly led and staffed with trustworthy officials, without improper interference with law enforcement functions that will erode public confidence in our American scales of justice.

The president is the head of the executive branch, and the U.S. Department of Justice has never been considered an independent agency insulated from presidential control. But the bedrock principles of due process and the First Amendment require that prosecutions be conducted based on the facts and the law, not based on political considerations.

Therefore, I strongly believe that the decision to investigate and to prosecute any citizen must be insulated from any partisan influence, whether it be from the president, members of Congress, civil servants, supervisors or outside actors. The powers of the Department of Justice must no longer be perverted for any partisan political ends.