Politics of Justice: Presidents Trump and Grant and the Problem of Investigating the Executive Branch

Abstract

Imagine the President undermining a criminal prosecution conducted by the President’s own Justice Department. Suppose the case implicated people closest to the President. Perhaps the President fired someone who was part of the investigation and prosecution. Then, believing the prosecutors are targeting the Presidency, the President openly advocates for someone the President’s Justice Department indicted. While this sounds like current events, those living in the 1870s would recognize this as President Ulysses Grant’s conduct during his Administration’s investigation and prosecution of the “Whiskey Rings.” Grant’s conduct undermined his administration’s efforts in the most controversial Whiskey Ring prosecution but came too late to affect any other cases. Nonetheless, President Grant’s conduct and the Justice Department’s response present a cautionary tale as our society and political system attempt to deal with the legal problems posed when the chief executive intercedes in a criminal case involving those closest to the President.

Ultimately, Grant’s conduct illustrates a weakness in our constitutional system that has emerged through practice rather than design. We recognize the inherent conflict when the executive branch must investigate itself but the solutions generally involve isolating the Justice Department from high-level political influence. Instead, we should utilize the mechanism our constitution provides: congressional inquiry, followed by impeachment and removal from office. This establishes separation of powers, maintains checks and balances and avoids the inherent conflict created by internal executive branch investigations.

Keywords: Legal history, Executive power, Investigations, Impeachment

JEL Classification: K14, K19