In the wake of a series of executive clemency actions, and interference with criminal cases being prosecuted by the U.S. Justice Department, President Donald J. Trump declared himself “the chief law enforcement officer of the United States” under the authority of Article II of the U.S. Constitution.
The president once again over-extends the power of the presidency and his executive role in it.
There are four Sections under Article II. The term “chief law enforcement officer” is not mentioned in any of these Sections.
Section 1 requires the following Oath or Affirmation from the President: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
That Oath does not designate any specific authority making the President the “chief law enforcement officer” of this nation.
Section 2 exclusively concerns the President’s pardon/clemency and appointment powers. Again, these constitutional powers do not make the President the “chief law enforcement officer” of this nation.
Section 3 imposes on the President the duty to “take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
Constitution Grants and Constrains Presidential Power
The Constitution Center says this Section both grants and constrains “presidential power.” The Section provides the President with the “discretion” to convene Congress on “extraordinary occasions” to, for example, consider emergency legislation, war, or nominations.
Nothing said in the Section about the President being the “chief law enforcement officer” of the nation.
Section 4 permits the impeachment of the President, Vice President and/or “all Civil Officers of the United States.”
Again, there is no mention of the President being the “chief law enforcement officer.”
Trumps Autocratic, Racist Role Model
President Trump adores former President Andrew Jackson and his autocratic rule. President Jackson, the racist and murderer that he was as evidenced by the Indian Removal Act of 1830, adored Maryland Attorney General Robert B. Taney—so much so that Jackson appointed this pro-slavery advocate as the president’s Attorney General in July 1831. Taney would go on to become the Chief Justice of the U.S. Supreme Court authoring one of the court’s most historically reviled decisions—the infamous 1857 Dred Scott decision that held African Americans, slaves or free men, could never be citizens of the United States.
Taney had been Attorney General for just five months when he was called upon in December 1831 to write a legal opinion involving President Jackson. The relatively obscure opinion became known as “The Jewels of the Princess of Orange.” The Netherlands’ Princess’s jewels were stolen and later seized from the thief by U.S. Customs. The Minister of the Netherlands requested that President Jackson return the Jewels.
Power of President Limited to Removing Chief Executive Officer
In the meantime a New York district attorney (then appointed by the President) had initiated condemnation proceedings to seize the jewels for that state. Taney said the only question before him was: “whether the President may lawfully direct the district attorney to discontinue the libel now pending against these jewels in the district court of New York.” Taney concluded:
“If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it—I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President’s order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer, the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President.”
That 1831 opinion by Attorney General Taney does not confer “law enforcement” powers on the President. It merely reinforced the President’s appointment powers; specifically, the power to fire a law enforcement officer who fails to follow the President’s wishes and replace him with another law enforcement officer more receptive to the President’s demands.
Specific Law Enforcement Decisions Belong to Subordinates
The Taney opinion makes clear that law enforcement decisions are made by a presidential “subordinate officer,” not the President.
Put another way, the Attorney General of the United States is the nation’s “chief law enforcement officer,” not the President.
The President, through his or her appointment power, has the unfettered authority to replace the Attorney General because the Attorney General does not either enforce or interpret the law as the President does, but the President does not have the power to “order” the Court or any of its officers to make any particular decision concerning the President’s legal interpretations.
Attorney General is Chief Law Enforcement Officer
Nor can the President force the Attorney General, or any other may subordinate law enforcement officers, to violate the law or any established constitutional mandate.
Despite the belief shared by many prominent legal scholars, like Benjamin Wittes (the editor-in-chief of Lawfare) that the President is indeed the nation’s chief law enforcement officer, this does not mean that Trump can force Attorney General Barr to act in the Roger Stone (or any other case) as the president wishes. All Trump can do is fire Barr if he does not do as the president wishes. The only option then left for Trump would be to appoint someone to replace Barr who would carry out the president’s wishes.
In a nutshell, the President’s appointment power cannot be translated into a law enforcement power. Law enforcement authority belongs exclusively to the president subordinate appointees who, admittedly, serve at the president’s pleasure.
Proof of this reality is that former Attorney General Jeff Sessions did not do everything President Trump wanted him to do. That prompted Trump to force Sessions out of office so Trump could appoint a more compliant Barr to be the “chief law enforcement officer” of the United States.
President Trump can prance around before the news cameras all he wants laying claim to the “chief law enforcement officer” title, but the reality is that that title belongs to Barr, admittedly a title that is rather meaningless in the attorney general’s hands.
President’s Article II Powers are limited
The reality: President Trump’s Article II powers are limited.
The President cannot legislate nor can he interpret legislation. Congress enacts legislation and the Judiciary interprets it. The President can only direct subordinates to “faithfully execute” that legislation, making Trump subservient to his subordinate’s obedience.
That doesn’t sound much like a “chief law enforcement officer” to us.
The bottom line, as we see it, is this: when it comes to matters of law enforcement, Trump can only “hire and fire” his subordinates, just like any other reality show host.