Donald Trump suggested on the campaign trail that he could use the Justice Department to fulfill his political agenda, taunting Hillary Clinton by threatening to throw her in jail over her email scandal.
Now, Sen. Jeff Sessions, Trump’s pick for attorney general, will have to decide whether to follow his predecessors by vowing to not let politics drive the DOJ’s decision-making.
The idea that the Justice Department should be free from political interference is not rooted in any statute or explicit constitutional provision. Instead, it evolved through a series of internal policy memos and letters issued by past Justice Department officials from both parties, according to a POLITICO review of historical records.
Sessions, as attorney general, could decide to abandon or overhaul those policies, a concern heightened by Trump’s suggestions during the campaign that he could pursue politically motivated prosecutions.
Notably, Sessions’ nomination is now in the hands of some of the same Republicans who pushed for tougher firewalls between the White House and the Justice Department during the Clinton administration. Those senators, Chuck Grassley of Iowa and Orrin Hatch of Utah, have not raised the issue in throwing their support behind Sessions, who faces his first day of confirmation hearings on Tuesday.
“This is the biggest question Jeff Sessions has to answer,” said Matt Miller, a former spokesman for Attorney General Eric Holder, who left office in 2015. “Attorneys general have always established it’s not appropriate for the White House to influence prosecutorial or investigative decisions. But there’s no law or regulation. If they want to change it, they can change it.”
Sen. Mike Lee (R-Utah), a longtime Trump critic, told POLITICO he’s planning to ask Sessions about DOJ independence and prosecutorial discretion during his confirmation hearing. Sessions expects such questions and is prepared to answer them, said Sarah Isgur Flores, a transition spokeswoman. She declined to say what his answer would be.
“Sen. Sessions’ decades-long career as a prosecutor, state attorney general, and U.S. senator speak to his fidelity to the rule of law and the Constitution,” she said on Monday. “He understands the proper role of the attorney general and is prepared to testify about his priorities for the office tomorrow.”
The prospective relationship between the Trump White House and the Sessions Justice Department will get extra scrutiny because Trump during the campaign attacked the judge in a fraud case against him, threatened to make it easier to sue media organizations, and promised to jail his political opponent. Even though Trump backed off those latter two pledges since the election, legal scholars and ex-prosecutors have raised alarms about his occasionally stated disregard for the rule of law.
And since the election, concerns have intensified about Trump’s refusal to unwind his business interests despite the numerous ways they could conflict with his official duties. Trump has also appointed ultra-wealthy cabinet secretaries who have their own extensive conflicts of interest and have not finished ethics reviews before their confirmation hearings.
The Justice Department traditionally plays a crucial role ensuring top federal officials are abiding by conflict of interest statutes, including by investigating officials who may be enriching themselves through government service and probing other ethics violations. For example, Rep. John Conyers on Monday asked the Justice Department to investigate Trump’s appointment of his son-in-law to a senior White House role despite a federal anti-nepotism statute.
Even though the attorney general serves at the pleasure of the president and the Justice Department is part of the executive branch, officials have long recognized that their legitimacy depends on public acceptance that law, not politics, drives prosecutions. (The White House is regularly deeply involved in national security cases.)
The custom was still unwritten but sufficiently entrenched by 1973 for Attorney General Elliot Richardson and his deputy, William Ruckelshaus, to resign rather than accept President Richard Nixon’s order to fire the Watergate special prosecutor. Their serial resignations became known as the Saturday Night Massacre.
The first written policy enshrining the Justice Department’s independence arose not from the Watergate scandal, but from a corruption scandal in the first year of the Carter administration. In 1978, Attorney General Griffin Bell removed a Republican U.S. attorney in Philadelphia at the request of a Pennsylvania congressman whom, it turned out, the prosecutor was investigating for corruption.
In response, Bell decided that only the top three DOJ officials should be allowed to communicate with the White House or Congress about specific cases, and all other contacts should be reported, “to continue the independence of the Department of Justice.” Politicians and prosecutors could still communicate about general policies.
“These restrictions are a small price, and a necessary one, for maintaining public confidence in the Department of Justice,” Bell wrote, according to the memo obtained by POLITICO.
Bell’s successor, Benjamin Civiletti, reaffirmed the rules when he took over in 1979. That began the tradition of every attorney general sending a department-wide memo endorsing the Justice Department’s independence and establishing rules to prevent political interference.
But there is nothing to require future attorneys general to continue the existing rules, or even have any rules at all.
“It is one of those norms that have been enormously useful for the country and have gotten people into trouble whenever they were violated, but that can easily go away,” said Bill Yeomans, former chief counsel to the late Sen. Ted Kennedy (D-Mass.) who is now a fellow at the American University Washington College of Law. “The big test for an attorney general is whether he’s willing to stand up to a president and say no, because sometimes you have to tell the president that what he wants to do is unlawful or unconstitutional. We haven’t seen any indication from Sen. Sessions that he’s likely to do that.”
The White House-DOJ firewall was strengthened during the Clinton administration, under pressure from Republicans including Hatch and Grassley.
Hatch’s and Grassley’s offices didn’t answer requests for comment.
At Janet Reno’s confirmation hearing in 1993, Grassley grilled her on White House involvement in politically sensitive prosecutions and whether she would as attorney general give the White House a heads-up on whether someone would be indicted. Reno’s policy was to limit discussions of specific cases to the attorney general, the White House counsel and their deputies.
After Whitewater and other early Clinton ethics scandals, Grassley repeated this line of questioning to Jamie Gorelick, who was nominated for deputy attorney general, in 1995.
“One of the key responsibilities of a senior official at the Department of Justice is to insulate from political influence the decisions of line prosecutors and of supervisory personnel, and I would consider it to be one of my strongest requirements,” Gorelick told Grassley at the hearing. “There are procedures set out in communications between the Department of Justice and this committee laying out the process for and constraints on those communications and I would certainly follow those.”
As part of her confirmation, Gorelick agreed to elaborate on the safeguards in an exchange of letters with Hatch, then Judiciary chairman. “Our goal is to insure that the administration of justice is free of political considerations and that it is correctly perceive to be totally apolitical,” she said in a 1995 letter.
Gorelick, who has been advising Jared Kushner as he prepares to enter the White House as a senior adviser, told POLITICO on Monday that the question consistently comes up at confirmation hearings, and she expects it to at Sessions’ as well.
“This was an issue in my hearing, and the people who were asking me about it are still there,” she said.
The only time an administration relaxed the rules resulted in scandal. John Ashcroft, George W. Bush’s first attorney general, in a 2002 memo expanded the number of White House officials who were allowed to contact the Justice Department from four to 417. His successor, Alberto Gonzales, in 2006 widened the circle to 895 people, according to an analysis by Senate Judiciary Committee member Sheldon Whitehouse (D-R.I.).
Gonzales was soon after accused of politicizing hiring, sidelining the Civil Rights division, and improperly firing U.S. attorneys. Investigations by the DOJ’s independent watchdog found fault with the actions but noted that legally the president has broad discretion over DOJ personnel.
“The Ashcroft and Gonzales years were a dark time for DOJ, when prosecutions were subject to political interference and career attorneys were pressured and subject to retaliation,” Whitehouse said in a statement to POLITICO. “Sen. Sessions, should he be confirmed as Attorney General, must keep the Department free of politics, no matter what Donald tweets or his political advisers think will score points.”
But Sessions, for his part, expressed some skepticism toward DOJ’s independence at the 2007 Senate hearings on the U.S. attorneys scandal.
“A U.S. Attorney is a part of the Department of Justice. It serves at the pleasure of the President,” Sessions said. “There are certain priorities and so forth that any administration has a legitimate right to pursue and to expect its prosecutors to pursue.”
That statement doesn’t concern David Iglesias, one of the fired U.S. attorneys, because he said it’s consistent with the notion that the White House can direct general priorities but not individual cases. Still, he said Sessions should go on the record at his hearing that politics shouldn’t taint prosecutions and the Justice Department should uphold the current rules. Failing to do so would invite another scandal, he said.
“I think Sessions is independent enough and has enough backbone to say, Mr. President, you can’t interfere,” Iglesias said. “No president has ever done that except Nixon during Watergate, and look what happened there.”
Gonzales, in an interview, defended the president’s sweeping control over the entire executive branch, a conservative constitutional theory popularized by the late Supreme Court Justice Antonin Scalia. Even so, Gonzales said part of the attorney general’s job is to stand up to the president if he wants to do something illegal or improper. And he agreed that Sessions should state his position at his hearing.
“He needs to say that the department should make decisions with respect to prosecutions and investigations based upon the evidence and wherever that evidence may lead, even if it may lead into the White House,” Gonzales said. “The public will want to know that no one will receive any favor from the Department of Justice based on their last name.”
Gonzales’s successor, Michael Mukasey, in 2007 restored the firewall between the White House and the Justice Department on specific cases, with a carve-out for national security.
“This limitation recognizes the president’s ability to perform his constitutional obligation to ‘take care that the laws be faithfully executed’ while ensuring that there is public confidence that the laws of the United States are administered and enforced in an impartial matter,” Mukasey said in the memo. He didn’t answer a request for comment.
Obama received some criticism for appearing to test that firewall when he repeatedly commented on the scandal around Hillary Clinton’s use of a private email server while she was secretary of state. The president expressed confidence during multiple interviews that Clinton had done nothing illegal, and some perceived that as an attempt to influence an ongoing DOJ probe into the matter.
Still, the Obama administration, concerned not only about the U.S. attorneys scandal but also about irregularities in the Bush administration’s request for legal opinions about incarcerating and interrogating terrorism suspects, imposed new restrictions in an expanded 2009 memo from Holder. In addition to limiting the people who can interact about pending cases, the memo also limited the officials who could be involved in requests for legal advice.
“The rule of law depends upon the evenhanded administration of justice,” the memo begins. “The legal judgments of the Department of Justice must be impartial and insulated from political influence.”
That is the now the policy on the books that Sessions will have to decide to continue, change or rescind. The burden on Sessions to establish his position Tuesday is increased by Trump’s apparent lack of appreciation for the tradition of DOJ’s independence, said Paul Charlton, another of the U.S. attorneys who was fired in the Bush administration scandal.
“I don’t think Donald Trump understands, and frankly that’s fine,” Charlton said. “But then it’s up to the people at DOJ to say no, we aren’t going to allow politics to infuse every decision we make.”
“In the Saturday Night Massacre, the attorney general and the deputy attorney general knew to say no,” Charlton added. “That’s what you’re looking for in Sen. Sessions.”
Seung Min Kim contributed to this report.