More from the article ...
... At the outset, it should be noted that in other liberal democracies, it would be -- and has been -- considered a violation of the rule of law for political leaders to dictate who is, or is not, to be criminally investigated or prosecuted.[4] It was likewise seen as contrary to the rule of law when President Richard Nixon pursued those on his enemies list. "I can only conclude from Mr. Nixon's actions that he considers himself above the law," Senator Floyd Haskell stated at the time.
But the firewalls erected post-Watergate to insulate the Department of Justice from the White House have now been breached. Furthermore, some suggest that no such walls could constitutionally be erected.[5] Channeling this view, the Trump administration has taken the position not only that any "norms" regarding the independence of the Department of Justice are no longer operative, but that -- in the words of Todd Blanche, Trump's attorney general and former personal lawyer -- the American people should be "happy" that Trump is directly involved in the Department of Justice's decisions, since it shows he is fulfilling his constitutional duty.
One's happiness in this regard may be tempered, however, by considering the Department of Justice's own Manual, which succinctly explains why such involvement by the president is contrary to the rule of law:
The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department's investigatory and prosecutorial powers be exercised free from partisan consideration. It is a fundamental duty of every employee of the Department to ensure that these principles are upheld in all of the Department's legal endeavors.
Likewise, the Group of States Against Corruption (GRECO) -- an international organization of which the United States is a member -- has "insisted on the need to ensure the autonomy of the prosecution service" and "warned against reporting to political authorities regarding the investigation of individual cases." This applies "whether prosecutors are functionally independent or hierarchically subordinated to the executive."
In short, if the Constitution requires the president to be the chief prosecutor, that requirement conflicts with fundamental precepts of the rule of law.[6] It is not our purpose, however, simply to reemphasize that point, or to repeat the arguments against this constitutional interpretation.[7] Instead, we assume that, as the Supreme Court has held, the president is the chief prosecutor under the Constitution and consider the implications of that holding.
We begin by showing that Trump has enthusiastically embraced this role.
We then ask -- given this embrace -- what are the consequences for criminal prosecutions, particularly those in which the president has direct involvement?
In other words, when the president acts as chief prosecutor -- when he decides or directs who is to be criminally investigated or prosecuted -- what are his responsibilities?
And when he deviates from those responsibilities, when should it void the prosecution or give the prosecuted another remedy? ...
