No president has ever attempted to do what Donald Trump now proposes to do—assemble a small team of former personal attorneys and install it at the highest levels of the Department of Justice. The president-elect first named lawyers who have represented him in recent years to the key positions of deputy attorney general, principal deputy attorney general, and solicitor general. Then, with the quick death of the Matt Gaetz nomination, he announced a new attorney-general nominee, Pam Bondi, who was a member of his legal defense team in the first impeachment. The Justice Department’s responsibilities have always been subject to competing expectations: that it would keep politics out of law enforcement but, like other departments, would loyally serve the president in the implementation of his governing program. The results have been uneven, and at times disastrous, as with Richard Nixon and the Watergate scandal. But when problems arose, they were relatively localized: the product of poor appointments, or the failure of particular presidents in particular situations to respect institutional values and norms. What the DOJ faces now is different in kind: a vision of White House control achieved through the appointments of individuals the president has chosen because they have worked for him and demonstrated their loyalty. The pressing question now is whether these lawyers may be, as the president-elect likely hopes, the “president’s lawyers” in more than one sense.
The DOJ’s special status as “independent” is not provided for in the Constitution, but is also not solely a product of “norms” established in the post-Watergate era, as many standard accounts would have it. The office of attorney general was created by the Judiciary Act of 1789, and this context is meaningful. The attorney general’s function, which involved rendering legal opinions and representing the United States before the Supreme Court, was perceived to be quasi-judicial. The Senate version of the bill even provided that the Court would appoint this officer. The final bill called for the attorney general to be a “meet [fit] person learned in the law.” This language points clearly in the direction of expected professionalism, and historians have noted that legal opinions the attorney general rendered to executive-branch agencies were expected to be “impartial and judicial.”
The department’s history is not one of limitless glory, in which all attorneys general appointed to the office were the most “meet” and “learned.” But the understanding was that this officer would perform up to some professional standard. Edward Bates, an attorney general in the Lincoln administration, famously stated, “The office I hold is not properly political, but strictly legal, and it is my duty, above all ministers of state, to uphold the law and resist all encroachments, from whatever quarter, of mere will and power.” (Emphasis in the original.)
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In 1870, the Department of Justice was established, and the attorney general became its leader. Following the Civil War, the government’s legal work grew in volume and complexity, and much of it was hired out to costly private counsel. Additionally, various departments across the government hired their own legal representation, which resulted in a lack of consistency in the country’s legal positions.
But there was another motivation: One scholar, Jed H. Shugerman of Fordham University, has noted that the use of outside counsel presented risks of “sycophancy, cronyism, and lawlessness.” Reform-minded critics believed that a government department would enhance professionalism and efficiency, and therefore provide for the separation of law from politics in federal law administration and enforcement. It would stand for expertise and independence of judgment.
But because the DOJ was an executive department like many others, charged with supporting the president’s policies and programs, tension persisted between professionalism and fidelity to the president’s policy agenda—between “too little” and “too much” politics—and it has persisted to this day. “Too little” politics, and the president was denied a legitimate instrument for the achievement of his policy goals; “too much” politics, and the impartiality of law enforcement would be compromised.
Striking the right balance was always a challenge. Senator Alan Cranston of California, who was active in the debates after Watergate, acknowledged, “Even our best attorneys general have never been free from suspicions that because they are political appointees of the president, they will be loyal to him over any other call of duty.” And presidents did not always go out of their way to make appointments likely to assuage these concerns. Dwight Eisenhower, Richard Nixon, and Ronald Reagan, for example, chose their attorneys general from the ranks of their campaign’s senior officials. John F. Kennedy nominated a former campaign manager—who was also his brother, was only 35 years of age, and had never practiced law.
So, the tale is not just about Watergate. That scandal, which implicated (and led to the imprisonment of) numerous senior lawyers in the Nixon administration, launched a cycle of concern about the dangers of federal law enforcement conscripted into a president’s personal and political (and, in Nixon’s case, also illegal) projects. The Nixon lawyers violated law in support of a crude scheme and cover-up to aid the president’s reelection effort. No plainer example of the contamination of law by politics might be imagined. But the “after action” analysis of what went wrong did not mark the advent of new norms, but instead another phase in the historic struggle to strike the balance between “two little” and “too much” politics.
The debate over this balance took a new direction when Sam Ervin, the former chair of the Senate Watergate committee, proposed legislation to turn the DOJ into an independent agency. Setting aside the constitutional question—whether the federal law-enforcement function could be entirely exempted from executive control—the proposal was found wanting on practical grounds. The president needed counsel of his own choice: The department legitimately owes the chief executive its principled fidelity to the achievement of the policy goals presumably mandated by the voters. Ervin held hearings on his proposal at which witnesses from both sides of the political divide testified against full DOJ independence from the president.
The testimony before Ervin’s committee included the warning that an independent department would further empower the White House counsel, a position appointed by the president without Senate confirmation. Presidents looking to exercise more control over the legal affairs of their administration than an independent DOJ might allow could rely on the White House counsel as the key source of legal advice, right there in the West Wing. This senior staff lawyer could quickly become the de facto, shadowy head of what one critic of the plan, the former counsel to President Kennedy, termed “a little department of Justice.” (Some of this came to pass anyway; the White House counsel would become highly influential in the president’s legal affairs in many administrations, and critics have argued that the office has encroached on the attorney general’s constitutional territory.) The American Bar Association came out against Ervin’s proposal.
Eventually, the Ervin plan failed, as did others like it. Soon, the question was how to adjust the balance between politics and nonpartisanship, between a commitment to the president’s governing program and independence in law-enforcement decisions. Congress passed a number of reforms designed to control the abuse of presidential power for improper political purposes, such as a 10-year term for the FBI director; restrictions on access to IRS records; the establishment of a special court to approve electronic law-enforcement surveillance; and the creation, in 1978, of the post of inspector general at agencies across the government, including at the DOJ. Additionally, in the years since Watergate, presidential administrations have routinely established policies restricting their staff’s communications with the Department of Justice in order to, as the version from the Biden White House puts it, “ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence.”
But even with reforms, much will always depend on the quality of appointments to the DOJ’s top positions. Daniel J. Meador, a former assistant attorney general and respected legal scholar, concluded that “in the end it is the individual occupying the office that will determine, more than anything else, whether an ‘incompatible marriage’ [between politics and law enforcement] is consummated or prevented in the administration of federal justice.” The American Bar Association concurred, arguing that the confirmation process for an attorney general “should assume the same importance” as that for a nominee to the Supreme Court.
[David A. Graham: Trump’s DOJ was more dangerous than we knew]
Some post-Watergate presidents have chosen judges or lawyers with extensive department or law-enforcement experience to serve as attorney general; others have selected those with whom they’ve had a personal or political connection. A number of presidents appointed AGs from the senior ranks of their political campaign’s advisers, including their campaign managers.
But Trump has set himself apart from even these predecessors, viewing the Department of Justice in the most personal of terms as his own. He has not bought into the goal of a quasi-independent DOJ. He has openly questioned why he should not have complete control over the department. This is, he proclaims, his “absolute right.” He expects “loyalty” from his staff and appointments, the DOJ included, and the loyalty he apparently has in mind is the unhampered variety modeled by his personal counsel of many years, Roy Cohn. As Trump put it, Cohn “was vicious to others in his protection of me.” The loyalty owed to him, particularly from his lawyers, was what he understands to be “protection.” When his first attorney general, Jeff Sessions, previously co-chair of his 2016 presidential campaign, recused himself from all matters involving the campaign, including the investigation into Russian ties, Trump reportedly raged at him that his AG was supposed to protect him. The recusal, therefore, constituted an act of personal betrayal and not, as Sessions viewed it, a decision necessarily reached after consultation with senior DOJ officials.
Trump’s intent to nominate multiple members of his personal legal team—lawyers whose loyalty has been tested in attorney-client relationships of keenest importance to the client—indicates that he is looking to seal in the personal protection he was denied in his prior term. In recognizing the danger here, it is not necessary to minimize or dismiss the professional qualities and accomplishments of all the lawyers he has chosen. Some (Todd Blanche and Emil Bove) have criminal law-enforcement experience. The nominee for solicitor general (D. John Sauer) has had clerkships and other experiences shared by many leading appellate advocates. But, if confirmed, these lawyers would come to their positions on the basis of their close and recent service to the president-elect as his personal counsel. And these officials may be working under Pam Bondi, who also participated in the president’s personal legal defense in his first term. This would be a consequential shift in the understanding of where the line ought to lie between “too little” and “too much” distance between the DOJ and the White House.
Presidents anxious to have loyal support from lawyers close to them have put their hopes in the White House counsel rather than a politically vetted, personally loyal corps of DOJ officials, and placed those to whom they were close in that role. One former DOJ official, the late Justice Antonin Scalia, put the point in mild terms when he characterized White House counsels as sources of “permissive and congenial advice.”
The Trump nominations represent an incoming president’s choice to take a more direct route to that advice. There is a far higher risk that the president will expect from these government lawyers the loyalty a client believes is owed by personal counsel. White House counsels have no power other than the opportunity to advise on the law, and certainly none to initiate investigations or prosecutions. Attorneys general, and those supporting them at the most senior levels of the DOJ, have broad authority and discretion in law enforcement.
Reagan selected a personal attorney, William French Smith, as attorney general, and this choice drew attention—as well as very specific assurances from the nominee. Asked during his Senate confirmation process whether this history of professional service would compromise his impartiality, Smith began by minimizing the extent of his role as Reagan’s personal lawyer—evidently in the belief that it was best downplayed: “Actually, although I have been referred to as the president’s personal attorney, that relationship probably has been the least significant aspect of my relationship with him.” He then committed to a comprehensive recusal policy:
I would have to be very conscious of situations where it could appear that because of that relationship, a problem might be created. Certainly, if a situation arises involving the president or a member of his family or others in a sensitive situation, I would recuse myself from participating or handling any aspect which might develop out of that situation.
Recusals at the Department of Justice, considered in consultation with career ethics advisers, are not uncommon. The test, as Sessions stated in his own recusal, is a broad one, applicable to any matter in which an official’s “impartiality might reasonably be questioned.” Attorneys general have recused themselves when a former aide was involved in an inquiry, or an adult child was defense counsel to an officer of a firm under investigation, or the CEO of such a company had made a contribution to a political campaign the attorney general had run some two years before. In the case of Trump’s senior DOJ nominees, the recusal issues are plainly presented by their recent and extensive personal attorney-client relationship with the president-elect. Among those issues are these lawyers’ potential future involvement in plans Trump has announced for “de-politicizing” the department, and, relatedly, potentially advising on his interest in retribution directed against political enemies. In both cases, a source, if not the main source, of Trump’s concerns and plans is the criminal prosecutions in which these lawyers were his defense counsel. How recusal requirements play out for these lawyers remains to be determined—recusals are fact-specific—but numerous questions might develop about whether they can advise on changes to DOJ programs and policies that the president might be considering.
Another question for these nominees is their commitment, beyond appropriate recusals, to other tools and procedures in place at the department to protect against abuse of investigative and prosecutorial power. The risk of abuse is by no means conjectural. Even if Trump and his supporters could reasonably point to problems in the conduct of federal law enforcement, he has never stopped there, instead threatening retaliation in extreme terms against political adversaries. The president is not barred in any way from communicating his expectations directly and freely to DOJ officials about his retaliatory impulses or designs, and, as the Supreme Court recently held, he will be fully immunized from any legal consequences.
How, then, will these nominees manage the unique pressures they face—in which the president’s perception of their loyalty is grounded in service to him as personal counsel? At the least in the case of the solicitor general designate, John Sauer, the signs so far are not encouraging. On December 27, as personal counsel to President-elect Trump, he filed a brief with the Supreme Court in the pending TikTok case. The Court is preparing to decide whether Congress may constitutionally ban the platform’s domestic operations unless, by January 19, 2025, it arranges by divestments to end Chinese-government control. Sauer argues that the Court should take action to prevent the ban from going into effect, giving time for Trump to take office and resolve the issue through some unspecified form of negotiated settlement. The nominee’s personal representation of Trump in a case involving his second-term presidency is sufficiently troubling, but his brief also brims over with adulatory language about Trump’s personal skills and successes: his “consummate dealmaking expertise,” his “resoundingly successful social-media platform, Truth Social,” his “first Term … highlighted by a series of policy triumphs achieved through historical deals.”
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This is the lawyer acting as a publicist, or perhaps just bending far in the direction of the personal client’s desire for plaudits—hardly the right posture for someone soon to come before the Senate for confirmation as the senior DOJ official to represent the United States in the federal courts. Even The Wall Street Journal, far from unfriendly to the new administration, flinched: “The SG isn’t supposed to be Mr. Trump’s personal attorney, and Mr. Sauer’s brief won’t help his credibility with the Justices if he is confirmed by the Senate. We trust the Justices will ignore this amicus sophistry.”
In the confirmation process, Sauer should be questioned about this choice of representation and what it suggests, or doesn’t, about his view of the solicitor general’s role. And all the nominees from the president’s personal legal team should be examined on their understanding of and commitment to other procedures and policies now in place at the DOJ to protect the appropriate degree of independence and impartiality. For example, what are these nominees’ view of the department’s Domestic Investigations and Operations Guide (DIOG), which applies to “sensitive investigative matters” such as those involving a political official or political party, or a political ally or adversary of the president? The guide’s stated purpose is to “ensure that all investigative and intelligence collection activities are conducted within Constitutional and statutory parameters and that civil liberties and privacy are protected.” Also, in the past, the DOJ has adopted, and formally communicated to Congress, the position that politically motivated prosecution decisions might violate federal obstruction-of-justice law. Underlying this view is the department’s embrace of the principle that “undue sensitivity to politics” is inconsistent with “fairness and justice” and that “partisan political considerations [should] play no role in … law enforcement decisions.” In the upcoming confirmation proceedings, senators should ask for the nominees’ perspective on these principles and their conscientious application.
The hope now should be for a serious confirmation process in which these fundamental institutional stakes, not purely partisan differences, should be front and center. All too often in recent years, the debate over institutional questions of this kind has become a referendum on Trump himself. This is not altogether avoidable: These are Trump’s nominees, reflecting Trump’s plans for the presidency and for the DOJ, and the parties are deeply divided on his politics and governing program. But if the debate is framed in the simplest terms—for or against Trump—the larger implications for the institution of the Department of Justice will recede into the background, if they are not lost entirely, and the prospect for responsible bipartisan deliberation will be lost. The public deserves better than that.