The Department of Justice (DOJ) is not structurally independent of the President, as it is part of the executive branch. However, there is a strong tradition and internal policy of operational independence, which is meant to prevent political influence from interfering with legal judgments, particularly in criminal investigations.
The constitutional framework
- Executive branch control: Under the U.S. Constitution, the President is the head of the executive branch and has the duty to "take care that the laws be faithfully executed". The Attorney General, who leads the DOJ, is a presidential appointee who serves at the President's pleasure and reports directly to them.
- No constitutional amendment: Making the DOJ or Attorney General independent would require a constitutional amendment to remove the power to prosecute from the executive branch.
Norms and policies for independence
- Post-Watergate policy: Following the Watergate scandal, the DOJ adopted internal policies designed to insulate it from White House interference. These policies include rules that restrict contact between White House staff and DOJ officials regarding specific criminal cases.
- Attorney General's role: As former Special Prosecutor Archibald Cox explained, the Attorney General is a political ally but not a servant of the President. Their ethical obligation is to apply the law in a "fair, even-handed, and disinterested way".
- Insulation from partisan considerations: The Justice Manual, which guides DOJ attorneys, instructs that all "legal judgments" must be "impartial and insulated from political influence".
