WASHINGTON — Before he was elected a second time as president, Donald Trump openly threatened to use — or abuse — his power by ordering federal prosecutors to pursue criminal cases against those he deems enemies.
There’s little in the law that would stop him.
That’s because the Supreme Court has made clear the Constitution gives the president total authority over enforcing federal law.
Since the Watergate scandal of the early 1970s, the Justice Department has sought to separate law enforcement from politics, and keep the White House at a distance.
But that separation is a matter of department policy, not the law.
“It’s the norm and the custom. It’s embedded in the U.S. attorneys manual,” said Washington lawyer Stuart Gerson, a former acting U.S. attorney general. “But under the ‘unitary executive’ theory, it is not illegal for the president to intervene in individual cases. It’s just a terrible idea.”
The late Justice Antonin Scalia popularized the unitary executive theory, dissenting in 1988 when the court upheld the independent counsels that had been created by Congress.
Scalia maintained that the Constitution puts all executive power in the hands of the president, and that neither the Congress nor the courts may interfere.
That view was adopted by the Supreme Court in July when the 6-3 conservative majority said Trump and other presidents are generally immune from criminal charges for abusing their official power.
Chief Justice John G. Roberts Jr. singled out law enforcement and the Justice Department.
“Investigative and prosecutorial decision-making is the special province of the Executive Branch, and the Constitution vests the entirety of the executive power in the president,” he wrote in Trump vs. United States.
Roberts said “the president occupies a unique position in the constitutional scheme, the only person who alone composes a branch of government.”
As the head of the executive branch, the president “has exclusive authority and absolute discretion to decide which crimes to investigate and prosecute,” he said.
Even if Trump had lost last week, that opinion could have shielded him as a former president from much of the pending criminal case over efforts to overturn his loss in the 2020 election.
Now the court’s opinion gives him a blank check for a second term. He would be largely free to pursue his enemies using the powers of federal investigators and prosecutors.
At campaign rallies and social media posts, Trump threatened to go after his political foes if he returned to the White House.
Last year, after he was indicted by the Biden administration’s special prosecutor, Trump said he would “appoint a real special prosecutor to go after the most corrupt president” in American history: “Joe Biden and the entire Biden crime family.”
He said Vice President Kamala Harris should be impeached and prosecuted. He said that former Republican Rep. Liz Cheney of Wyoming could be charged with treason, and that critics of the conservative-dominated Supreme Court “should be put in jail.”
It does not mean Trump will carry out his threats. Some of his aides and advisors say that he has been a victim of “weaponized” prosecutions by Democrats but does not plan to seek revenge through the Justice Department.
“President Trump will not use the DOJ for political purposes, that is go after the individuals simply because they are political opponents,” Mark Paoletta, a Washington attorney and longtime friend of conservative Justice Clarence Thomas, wrote in a social media post.
Paoletta, who served in Trump’s first term, has been mentioned as a candidate for attorney general.
He cited the court’s opinion in July as confirming that a president’s broad power to control the Justice Department includes intervening in individual cases.
“The president has a duty to supervise the types of cases DOJ should focus on and can intervene to direct DOJ on specific cases,” he said.
Legal experts see danger in politically driven investigations.
“There is reason for alarm. The president could send over a list to the DOJ of people he wants investigated,” said Peter Shane, a New York University law professor. “Trump would think he is entitled to do that. And his advisors will tell him he is constitutionally entitled to do it.”
Prosecutions require proof of a criminal violation. And judges can throw out indictments that do not allege a true crime.
But Shane said the danger is not so much of “a conviction or going to trial. It’s the investigation itself.”
Veteran Washington attorney Michael Bromwich agreed. “This will scare people. It is a very effective scare tactic,” he said.
He knows from experience. He represented Andrew McCabe, the former deputy director at the FBI who was fired by Trump and subjected to a lengthy criminal investigation.
“He was pursued because Trump did not like him. But in the end, a grand jury would not indict him,” Bromwich said.
Bromwich, who was formerly a federal prosecutor and inspector general at the Justice Department, said the second Trump term will “test the mettle” of prosecutors and judges.
“It is part of the culture of the Justice Department,” he said. “You take an oath to defend the Constitution, and it is well understood that you pursue cases based on the facts and the law, not for partisan or political reasons.”
He said Justice Department lawyers will face a test of their oath.
“Do they pursue something because of the president’s personal grievances?” he said. “Do they ignore their oath? And if they say ‘no,’ will they be fired? They will test the mettle of prosecutors throughout the Justice Department.”
