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By Thomas G. Moukawsher
Retired Judge and Author
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With last week’s Senate approval of President Donald Trump’s former personal lawyer Todd Blanche as attorney general, the game is up. It’s no longer possible to pretend that the Justice Department has a shred of independence left. With it orchestrating arrests of the president’s enemies, covering up the Epstein scandal and agreeing to a $100 million tax swindle for the president and his family, it has no credibility.
So maybe we should get rid of the current department altogether. Maybe criminal prosecutors should become part of the judicial branch where they could be supervised by judges, rather than continue to be the toy of the president’s whims and wickedness. Yes, it would require a constitutional amendment, but thanks to Trump we are going to need constitutional changes.
Moving prosecutors into the judicial branch could be joined with constitutional amendments allowing laws limiting money in politics, eliminating partisan gerrymandering and preventing Congress from ceding its core powers to the president. Trump’s years in office have shown that money and naked power grabs are threatening the foundation of our democracy. That foundation will need more than a quick spackling to keep standing.
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It wouldn’t make sense to move all Justice Department attorneys into the judicial branch; maybe just the most dangerous ones—criminal prosecutors. Litigators handling civil rights, antitrust, environmental, tax and national security issues should remain under the president. Moving them too would unduly erode the president’s ability to “faithfully execute the laws.” It’s true that presidents can abuse the work of these lawyers too, but at least the president wouldn’t be able to jail people on a whim as Trump is attempting now.
Prosecutors in Italy, France and Spain are part of their judiciaries. Italy’s system recently survived a tussle with Prime Minister Giorgia Meloni. Pointing to a judicial scandal, Meloni’s right-wing government sought to make prosecutors part of her executive power, but Italian voters rebuffed her.
Critics of Meloni’s plan feared ending up like us, with partisan prosecutors going after opponents of the ruling regime rather than impartially pursuing justice. In her first electoral rebuke, a solid majority of Italian voters opposed putting more power into a single set of hands. Italian prosecutors remain within the judiciary, safe from politics.
Since the days after Richard Nixon until the time of Trump, the Justice Department, along with the FBI, was relatively safe from politics and respected for being staffed with trustworthy nonpartisans. Only those smoking the wacky weed of Trumpian weasel words have believed his lies about the Biden administration “weaponizing” the justice system against him. The truth is that if that system had a major flaw, it was that it moved against Trump’s very real crimes in a very slow way—so slow that the major prosecutions had to be dropped when he was elected president for the second time.
Not only should we have preserved prosecutorial neutrality federally, we should have been spreading the idea locally, too. Voters elect local prosecutors in almost all American states. It’s not a good thing. While it makes prosecutors accountable to the people, it also subjects them to their whims—which may be whipped up by populists or bought by billionaires. Dedicated professional attorneys too often shy away from these posts. They, like most of the rest of us, hate politics.
Moving prosecutors into the least partisan branch of government might work best, but there is an alternative. It would also require a constitutional amendment to defeat presidentially aggrandizing decisions from the Supreme Court. But the Justice Department could stay in the executive branch and work well if the Constitution authorized Congress to regulate federal prosecutorial functions to insulate them from partisan politics.
This would have the advantage of keeping judges firmly impartial. Prosecutors and defense lawyers are adversaries while judges are neutrals who resolve their disputes. If judges appeared to be part of the same team as prosecutors, public confidence in that neutrality could be in trouble. Still, walls within the judicial branch could be set up to ensure independent judgments by prosecutors just like the informal ones that once prevailed within the executive branch.
Whatever approach we take, it’s obvious that Donald Trump may have dealt the Justice Department a mortal blow. It’s time to start looking at alternatives.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former leader within the American Bar Association. He is the author of the book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It*.*
The views expressed in this article are the writer’s own.
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