On June 17, a powerhouse lineup of former White House and DOJ officials will discuss one of the most pressing issues in presidential administration of late – is the nation’s chief law enforcement, and law interpretation, agency run most soundly if it is subordinate to the Chief Executive or independent?  The Federalism & Separation of Powers Practice Group within the Federalist Society will host a virtual discussion of this important question by former senior government officials Attorney General Michael Mukasey (Bush II), Deputy Attorney General Jamie Gorelick (Clinton), White House Counsel Bob Bauer (Obama), and Assistant Attorney General for the Office of Legal Counsel Steve Engel (Trump). U.S. Court of Appeals for the Sixth Circuit Judge Chad Readler will moderate.  The online event will begin at noon ET on June 17 and is open to the public and the press.  Register here.

The panel will address many issues under discussion in the media and the courts as the Biden Administration has entered office and reached determinations on how to litigate prior Supreme Court cert petitions filed by the Trump Administration and whether to press Trump Administration positions on privilege, immunity, and religious liberty in the lower courts.  For example, just yesterday, Attorney General Merrick Garland addressed questions of DOJ adherence to the law in testimony before the U.S. Senate Appropriations Committee.  He explained his position that preservation of critical executive institutional interests necessitates continued legal defense of Trump Administration priorities even where the Biden Administration disagrees with the underlying policy action related to the legal challenge.  

Tying in with these important deliberations related to presidential supervision, the June 17th panel discussion will include analysis of constitutionally freighted questions such as:

To whom is the Department of Justice accountable? Whose interests does it represent?  

When a change in executive leadership occurs, should the policies at agencies like DOJ be subject to change as well? And, if so, how far does that latitude extend—to prosecutorial policies, to enforcement discretion, to the questions of constitutional and statutory and criminal law interpretation delegated for resolution to DOJ? This distinguished panel discussion will address these issues and the core question of which governmental actors our constitutional system has charged with directing the arc of the use of that authority.

Not only did each panelist previously have to evaluate such issues, on the ground, for the Department and the White House, but Mr. Bauer recently co-wrote a book on White House/DOJ relations with former OLC head, Jack Goldsmith (Bush II).  The Bauer-Goldsmith analysis, related to many of the topics at issue in next week’s panel, contains numerous recommendations for how the White House and Justice Department might interact moving forward.  Readers could find some of the Bauer-Goldsmith proposals somewhat surprising, such as the suggestion that an attorney general’s supervisory authority over future special counsel investigations should include expanded authority “to supervise the investigation overall.”  p. 188.  And the proposal that key components of White House Counsel Office operations be transferred to DOJ’s Office of Legal Counsel to create one step of separation from what the authors title “West Wing culture.”  See p. 272.  Many additional proposals relate to transparency.  But in the end, Bauer & Goldsmith profess a hearty view of the need for Attorney General political control over the Department for constitutional accountability purposes, as they conclude that “political processes and political pressure (including the confirmation process) are ultimately all that can keep the attorney general in check” and, thus, he must have authority over DOJ-related operations.  See p. 198. 

So, register and tune in next Thursday for analysis of the DOJ’s proper role within the Executive Branch by former officials who once led this critical federal institution.