Barry Sullivan and Arete Tsoukalas, Loyola University Chicago School of Law, have posted Watergate, the Roberts Court, and the Independence of the Department of Justice, which is forthcoming in the Journal of Criminal Law & Criminology. It pairs well with this story in today's New York Times and with Devlin Barrett's The Department of Revenge: How Trump Took Control of American Justice (Simon & Schuster, 2026), which we're reading.
After Watergate, the reputation of the Department of Justice was in tatters. Among the reforms that were considered, the most extreme may have been Senator Sam Ervin's proposal to transform the Department into an independent agency, beyond the direct control of the President. The legislation failed, but the legislative history is instructive. Among other things, there was a strong consensus that the totality of the Department's prosecutorial responsibilities could not constitutionally be transferred to an independent agency; but there was also a strong consensus that the Attorney General should not be the President's intimate or political operative, that the Department of Justice should have some degree of independence from presidential control, and that the President should not have any role in deciding which particular individuals or entities should be investigated or prosecuted. Under Attorney General Levi and his immediate successors, what Senator Ervin hoped to achieve through legislation was largely accomplished through administrative regulation and convention, and that settlement was mostly honored by succeeding administrations.
Main Justice (without the present banner) (LC)
The Supreme Court has now adopted the expansive view of presidential power reflected in
Justice Scalia's lone dissent in Morrison v. Olson (1988). According to Trump v. United States (2024), the President has "exclusive authority over the investigative and prosecutorial functions of the Justice Department," even when the investigations are "shams" or undertaken for a clearly improper purpose. The Court's recent jurisprudence has converted a once overwhelmingly rejected minority position into a shield for direct presidential control of prosecutorial and administrative power, a shield that presidents may use to investigate and prosecute their political adversaries in ways the Watergate-era reformers thought they had foreclosed. At the same time, Congress has largely shunned its own oversight role. This paper revisits Watergate and its now-forgotten lessons about unbridled executive power in light of the Senator Ervin's proposed legislation and current constitutional developments.
--Dan Ernst