By David B. Rivkin Jr. and Lee A. Casey
Special to The Washington Post
The Constitution vests all executive power in the president. He has the authority to determine what matters will, and will not, be investigated and prosecuted by the U.S. government. This is also a core part of the president's obligation to "take care that the laws be faithfully executed" — and it remains so even if done through an unorthodox channel such as Twitter.
So it is puzzling to see so much criticism of President Donald Trump's demand that the Justice Department investigate allegations about his presidential campaign being improperly subjected to an FBI counterintelligence probe. Same goes for his instruction to the Justice Department and the FBI that they should grant congressional requests for information about that matter.
Indeed, Trump would have been well within his authority, and precedent, to order an investigation entirely independent of the Justice Department and the FBI, as President Lyndon B. Johnson did when he created, by executive order, the Warren Commission to investigate the circumstances of President John F. Kennedy's death.
When critics claim that a president cannot direct federal law enforcement activities, they are implying that subordinate executive branch officials can both judge and act upon their own assessment of a president's motivations. There is no basis in the Constitution's language, statute or Supreme Court precedent for such a notion. Those who object to a president's instructions may resign, but they cannot usurp executive authority and defy him.
Imagine a world where this kind of insulation from presidential control existed. Such a system would create more opportunities for misconduct than the constitutionally enshrined system. Unlike appointed officials and employees, the president is accountable to the electorate. If he misuses his power, the voters can punish him. And if he abuses his authority, Congress can remove him from office through impeachment proceedings.
Only in one post-Watergate statute did Congress limit the president's ability to oversee criminal investigations by providing for appointment of an independent counsel who could only be removed for cause. The Supreme Court upheld this law in Morrison v. Olson, even though it trenched upon the president's executive authority, concluding that the statute did not unduly limit the president's power because the imposition was slight. Effectively treating all federal prosecutors as independent and placing the entire federal law enforcement apparatus beyond the president's supervision would fly in the face of Morrison.
Besides, with accountability being a paramount constitutional virtue, there is another fundamental constitutional problem with the kind of insulation that Trump's critics propose. Congressionally mandated insulation of independent counsels at least left Congress politically accountable.
By contrast, bureaucratic self-insulation is inherently imprecise and destroys accountability.
Similarly, the Justice Department's assertion of executive privilege to shield from disclosure documents — such as those sought by Congress on federal surveillance of the Trump campaign — is also a core presidential function.
Whatever one feels about the wisdom of Trump's directives, fidelity to the Constitution best protects our democracy in the long run.
Rivkin Jr. and Casey, who practice appellate and constitutional law in the District of Columbia, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Rivkin also served in the White House counsel's office in the George H.W. Bush administration.