Debate Reignites Over DOJ Independence and Presidential Authority

A recent social media post by Kevin Bass PhD MS has sparked renewed discussion regarding the historical relationship between the U.S. Department of Justice (DOJ) and the presidency, asserting that reasserting presidential authority over the DOJ would be a return to constitutional norms. The tweet challenges the current understanding of the DOJ's independence, labeling it an "unaccountable 'fourth branch'" that is "unconstitutional."

The Department of Justice was formally established in 1870 by President Ulysses S. Grant, consolidating various legal functions under an Attorney General. The office of the Attorney General, however, predates the department, having been created by the First Congress in 1789. The tweet accurately notes that none of the nation's founders were alive at the time of the DOJ's 1870 creation.

Historically, the DOJ operated with significant presidential oversight. During the 1930s, under President Franklin D. Roosevelt, the department saw substantial expansion and reorganization, including the establishment of the FBI, with Attorney General Homer S. Cummings playing a key role in modernizing its structure. This period highlighted strong executive influence over the department's functions.

A significant shift towards greater perceived independence for the DOJ occurred in the 1970s, particularly in the aftermath of the Watergate scandal. Events like the "Saturday Night Massacre" in 1973, where top DOJ officials resigned rather than comply with President Nixon's order to fire Special Prosecutor Archibald Cox, underscored public and political demands for a Justice Department less susceptible to direct White House political pressure. This era led to the development of norms emphasizing the DOJ's independence in criminal investigations and prosecutions.

The tweet contends that this post-1970s independence is "unconstitutional" and that former President Trump's efforts to exert more control align with "historical, democratic, constitutional norms." This perspective often aligns with the "unitary executive theory," which posits that the President has complete control over the executive branch, including agencies like the DOJ. Proponents of this theory argue that the Constitution vests all executive power in the President, making any significant independence of executive agencies a challenge to constitutional design.

"DOJ was created in 1870 by Ulysses S. Grant as part of the executive branch. None of the founders were alive. Until the 1930s, DOJ operated strictly under presidential authority. In the 1970s, DOJ became independent of the White House, functioning as an unaccountable 'fourth branch' of government. This is unconstitutional. By reasserting presidential authority over DOJ, Trump is returning to historical, democratic, constitutional norms," stated Kevin Bass PhD MS in his tweet. He further added, "Nothing Pelosi says is true. She's lying."

The debate over DOJ independence versus presidential authority remains a contentious issue, with differing interpretations of historical practice and constitutional principles shaping contemporary political discourse.