In quick succession, president-elect Donald Trump named Matt Gaetz as his pick for attorney general, Todd Blanche as deputy AG, and Bill McGinley as White House counsel. Gaetz and Blanche need Senate approval; McGinley does not. Also tapped by Trump: Emil Bove, Blanche’s would-be second in command, and D. John Sauer, the choice to head up the solicitor general’s office.
Regardless of the merits of these very different attorneys for these posts (Blanche, Bove, and Sauer have all represented Trump in recent court cases), there is a common theme running through their selections. Trump apparently wants lawyers—some with backgrounds as prosecutors—who may be more inclined to take an aggressive stance toward executive power and adopt what has been loosely called the “unitary executive theory” that has been developing in one form or another since Richard Nixon’s time in office.
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That initiative seeks to minimize the limits—the guardrails—that might otherwise restrict what a president can do. When exercising prosecutorial powers, for example, many in favor of the unitary executive theory see virtually no constraints on the president’s discretion in, say, targeting who gets indicted. This impulse to consolidate power is in line with July’s monumental Supreme Court ruling, which holds that a president is protected by “absolute immunity” from criminal prosecution for conduct “within his exclusive sphere of constitutional authority.”
A brief history might help clarify what we’re seeing with Trump’s nominations of Gaetz and company. (By most accounts, Christopher Wray, the director of the FBI, will not serve in Trump’s new term.)
The story begins in 1972. After Nixon won a second term in a landslide, he asked for all his top officials to tender their resignations. He would decide who to keep and who to let go. At the same time, he sent his chief of staff, Bob Haldeman, and top domestic policy adviser, John Ehrlichman, to Camp David to work out a complete restructuring of the executive branch. Nixon’s purpose was twofold: to make those in the executive branch directly responsible and reportable to the president, and to narrow the oversight powers of congressional committees of executive departments and agencies.
The point was to make career bureaucrats responsive to the White House. From the standpoint of the entrenched civil servants—sometimes referred to today, pejoratively, as functionaries in a monolithic “deep state”—they could wait out acting on the administration’s directives. Nixon, however, wanted his agenda executed in the here and now.
Then came the revelations of Watergate, a scandal that erupted after the bungled June 1972 break-in of the Democratic National Committee headquarters at the Watergate office complex, orchestrated by Nixon campaign operatives. Soon, damning stories appeared in the press that Nixon officials—and “dirty tricksters” working with the Committee to Reelect the President—had been behind efforts to discredit Nixon’s political opponents. Exposés about the schemes, unearthed by The Washington Post and others, sent shockwaves across the capital. Things turned corrosive after Nixon won reelection and the Watergate burglars went on trial in January 1973. In a spiral, Nixon fired or accepted the resignations of Haldeman, Ehrlichman, White House counsel John Dean, and Attorney General Richard Kleindienst by April. Amid this chaos, Nixon’s planned restructuring efforts ground to a halt.
His top advisers, in full damage-control mode, tried to cover up their roles in—and the president’s knowledge of—a range of illegal activities. The scandal slowly grew and overshadowed Nixon’s resounding win due to several factors: the slow drip of disclosures in Senate hearings, the discovery of a secret White House tape-recording system (that had documented the criminality in real-time), and the firing of special prosecutor Archibald Cox. Nixon resigned in August 1974 before he could be formally impeached based on allegations of abuse of power and obstruction of justice. In time, scores of people would be charged with Nixon-related crimes, including his former attorney general, John Mitchell, in what historian Garrett Graff has called “one of the largest criminal federal cases in a very criminalized decade.”
In the fallout, there was a concerted move to make sure that abuses of presidential power, like those occurring on Nixon’s watch, would not be allowed to happen again. Reformers wanted to create some separation between the president and the attorney general, along with the Department of Justice. Norms and standards were developed at the DOJ to ensure that the department worked independently on prosecutions to avoid the very kind of atmospherics experienced during Watergate, in which Nixon’s attorney general, Kleindienst, and Henry Petersen, who was the head of DOJ’s criminal division, influenced the Watergate investigation by alerting the president behind the scenes about what was going on with key cooperating witnesses, such as White House counsel Dean.
But down through the years, the unitary executive theory evolved, advancing the agendas of those who believed that the president should have largely unchecked powers. Constitutional scholars, conservative thinkers, and others saw benefits in expanding the authority of the occupant of the Oval Office. Under Ronald Reagan, for example, Attorney General Edwin Meese supported the notion that the president be afforded wide latitude in exercising executive prerogative.
Then, in 2000, came the pivotal case Bush v. Gore, the Florida ballot-counting lawsuit between White House aspirants George W. Bush and Al Gore. By a 5-to-4 margin, the Supreme Court sided with Bush, making him the 43rd president of the United States. As it happens, three of the lawyers who worked for Bush’s legal team on that case—Amy Coney Barrett, Brett Kavanaugh, and John Roberts—are now on the High Court. And both Kavanaugh and Coney Barrett would go on to support Chief Justice Roberts’s extraordinary July opinion, which provides a president with absolute immunity when he acts within his “core powers.” One of the core powers is the “take care clause” in the Constitution. Article II, Section 3, vests in the president the exclusive authority to “take care that the laws are faithfully executed.”
(During Bush’s eight years in office, lawyers in his administration continued pushing the limits of executive power. At its zenith—or nadir, depending on your viewpoint—were the torture memos drafted in 2002–2003 by John Yoo, who worked as a deputy assistant attorney general in the Bush II Department of Justice.)
Fast forward to Trump’s first term in office. When the Justice Department and Congress were hammering away at the administration—epitomized by special counsel Robert Mueller’s investigation into possible Russian interference in the 2016 presidential election, as well as a raft of congressional subpoenas—Trump’s soon-to-be AG, William Barr, stepped up (in a 2018 letter) to suggest that Trump assert his absolute authority to control criminal investigations, including inquiries into presidential activity. Among those acts would be those that many perceived as intended to obstruct justice, such as the firing of then FBI Director Jim Comey, or Trump’s purported suggestion, according to Comey, that he “go easy” on Trump’s national security adviser Mike Flynn, who would plead guilty to lying about his contacts with Russian officials—before being pardoned by Trump. Trump has denied that he ever told Comey to “go easy” on Flynn.
So, if William Barr is right, the only practical limit on a president directing a politically motivated prosecution would come down to whoever heads up the DOJ and White House counsel’s office.
It is not hard to see that Barr’s 2018 memo presaged what would happen in the immunity decision in 2024. Barr argued that Trump’s actions in the Mueller probe implicated “at least two broad discretionary powers vested by the Constitution exclusively in the President…. First, in removing Comey as director of the FBI there is no question that the President was exercising one of his core authorities under the Constitution. Because the President has Constitutional responsibility for seeing that the laws are faithfully executed, it is settled that he has ‘illimitable’ discretion to remove principal officers carrying out his Executive functions.” Secondly, Barr argued that “in commenting to Comey about Flynn’s situation—to the extent it is taken as the President having placed his thumb on the scale in favor of lenity—the President was plainly within his plenary discretion over the prosecution function.”
Barr’s view was absolute: “The Constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President. The President’s discretion in these areas has long been considered ‘absolute,’ and his decisions exercising this discretion are presumed to be regular and are generally deemed non-reviewable.”
So, if Barr is right, the only practical limit on a president directing a politically motivated prosecution (other than impeachment—and we know where that goes these days, having lived through two Trump impeachments by the House and two acquittals by the Senate) would come down to whoever heads up the DOJ and White House counsel’s office. That is what is so disturbing, particularly with the Gaetz selection. It signals a clear and present danger: that Trump may not want to be constrained in who he prosecutes.
In the long history of the US executive branch, various attorneys general have at times acted to curb presidential abuses, and at other times, to enable presidential overreach. Before Jimmy Carter, there were examples of AGs who acted in both ways: curb and enabler. For many decades, in fact, the office of the AG was considered almost private; the AGs saw themselves as the president’s personal lawyer, as opposed to serving as counsel for the government, or even for the Office of the Presidency.
Examples abound. Harry Daugherty was AG for President Warren Harding, having been his campaign manager. After leaving office, Daugherty was prosecuted for alleged corruption (graft), but his first jury deadlocked and the second acquitted him. Yet Daugherty also assisted Harding in commuting the sentences of political prisoners, like socialist Eugene Debs, whom Woodrow Wilson’s administration had prosecuted under the Espionage and Sedition Acts of WWI (with the assistance of the American Protective League, thousands of ordinary citizens were deputized by the AG to hunt down German spies during the war).
Likewise, in the summer of 1963, AG Robert F. Kennedy, the president’s brother, worked closely with John F. Kennedy to convince business, political, and religious leaders to assist in moves to end segregation in the US (in what eventually became the Civil Rights Act under JFK’s successor, Lyndon Johnson). And yet, at the same time, RFK approved wiretaps on Dr. Martin Luther King Jr. and others in his circle because FBI Director J. Edgar Hoover suspected there was communist influence in the movement. (In the end, according to Stanford’s Martin Luther King Jr. Research and Education Institute, the Bureau unearthed no proof of such influence.)
As noted above, John Mitchell, AG during Nixon’s first term and then campaign manager during Watergate, was a central actor in the cover-up and was convicted of obstruction crimes, but he also tempered some of Nixon’s worst tendencies. When Nixon threw a tantrum over Chief Justice Warren Burger’s resistance to placing a woman on the Supreme Court, resulting in Burger’s threat to resign, Nixon said on tape, “I accept it. Right now! Right now!” Mitchell calmly responded, “Yeah, well, we can’t do that.”
Now, with the Supreme Court immunity decision in place, the AG, the White House counsel, and the solicitor general may have the requisite rationale to be unrestrained with advice when it comes to the “core function” of the president if he decides, for instance, to prosecute perceived enemies. The pendulum has swung radically to the side of the AG and DOJ not acting independently, but simply becoming the president’s facilitators.
Another group to be concerned about is the Office of Legal Counsel within the DOJ. This is the unit that provides written opinions on the law as it pertains to presidential powers. Justices William Rehnquist and Antonin Scalia came out of this office. So did John Yoo. This is also the team that penned the opinion that sitting presidents cannot be prosecuted while in office.
With the Supreme Court immunity decision in place, the AG and White House counsel may have the requisite rationale to be unrestrained with advice if the president decides, for instance, to prosecute perceived enemies.
Meanwhile, the White House counsel plays a more direct, active role with the president on a daily basis, and is the liaison between the Office of the Presidency and the DOJ. The specifics of the role, however, are very undefined, making it possible for the White House counsel’s influence to broaden considerably since the 1970s. John Dean—who held the post during the Watergate days and with whom I’ve given lectures on the “unitary executive theory”—thinks the job should be pared back, if not eliminated. That said, Trump’s first two WHCs, in fact, acted as guardrails when it counted. Pat Cipollone was the lawyer who tried to get Trump to stop the rioters during the January 6 insurrection. Don McGahn is the WHC who cooperated in the Mueller investigation. The WHC, historically, had mainly been a clearing house for vetting candidates for judicial office and other top administration officers (checking on conflicts, etc.).
Which brings us to Trump’s prospective nominees. By naming Gaetz, Trump seems to be showing that he intends to blow past many of these limiting influences and constraining offices. Theoretically, having a loyalist like Gaetz as his AG would make it infinitely easier for the incoming president to use the DOJ as a political arm to go after those he considers opponents. The real worry is that many of the policies and laws governing the DOJ’s activities that have been carefully crafted over the past five decades—policies that were meant to insulate the department from a president’s darkest political impulses—will be jettisoned. A second concern is that a docile Supreme Court may well defer to the president, contending that he has absolute immunity for exercising his core constitutional power to “take care that the laws are faithfully executed.”
Worse in many ways is the fact that the AG, DOJ, and WHC will help select and vet future justices and judges who, similarly, may see no light between what a president wants to do personally and the prosecutorial power of the DOJ. It is hard to find the checks and balances in any of this.
James David Robenalt is a presidential historian, attorney, and Washington Post contributor. He is the author of four nonfiction books: The Harding Affair; Linking Rings; Ballots and Bullets; and January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.
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