Civics on the Rocks: Should the Justice Department Be Independent?
- Anne Trominski
- 7 hours ago
- 42 min read
By Anne Trominski:
In case you were unaware, things are a bit crazy in the United States right now. In an era of shocking news stories, unheard of court cases, and generally unprecedented political events, discourse has gotten a tad tense . . . some might even say divisive.
Can we still discuss the events of the day over the dinner table? Can we realistically look to the past to deal with the problems of today? Is there an appropriate cocktail to serve for the end of times?
Three friends tackle these topics and distract themselves with other tangents in their podcast Civics on the Rocks. Steve’s an engineer, Mack’s a history teacher, and Anne’s just trying to get the mics to work correctly (with varying amounts of success). The long-form episodes are released at the beginning of each month. Living in Texas, they have plenty of political fodder to chew on, but topics cover all types of history and government. The hosts are unrepentant geeks, so they are just as likely to drop movie references as knowledge bombs but, ultimately, their goal is to try and figure out how to be engaged citizens in modern America. They’re also drinking and making cheesy jokes while doing it.
Full episodes with citations (geeks, I say) are available on their website, CivicsOnTheRocks.podbean.com, as well as all the major podcast carriers and socials.
In this episode, the trio discuss the current state of government agencies and the need for judicial independence.
Read the edited transcript or listen to the entire episode below. And click here for references to the facts and topics discussed throughout.
This episode originally aired September 1, 2025.
Anne: The question of the day: Should the Justice Department be independent?
Steve: What is independent?
Mack: Yeah. No, that's a good question.
Anne: What is justice? No, let's not go there. Nevermind. I take it back. I take it back.
Steve: This is not a philosophy podcast.
Mack: So the issue with that is . . . so we have three branches: legislative, executive, and judicial. And the power of the executive is vested in one person, the president of the United States.
Steve: And the executive branch.
Mack: Well, the executive, well, we can look it up in a minute, the language, but it's the president is the head of the executive branch. At the Constitutional Convention, not everybody was sold on the idea of just one president . . .
Steve: A king.
Mack: . . . and that's what they were worried about. Oh, yeah. One of the proposals, in fact, William Patterson's New Jersey Plan --
Anne: Oh, a New Jersey plan. Well . . .
Mack: Yeah, ok, but . . .
Steve: And New Jersey was the bomb back then.
Anne: The Garden State?
Mack: The New Jersey Plan mentions having a Supreme Court, because under the Virginia Plan, it was like federal judiciary or whatever. But that wasn't the main thing, the actual main thing—the New Jersey Plan was offered as a counterpoint to the Virginia Plan where representation would've been based entirely on population in both houses, and the small states were like, “uh, no.” But anyway . . .
Anne: Rhode Island was like, “Fuck y’all.”
Mack: No, they weren’t, because . . .
Steve & Mack: They weren’t there.
Anne: But wherever they were, they were saying, “Fuck y’all.”
Steve: Oh, they were. But they were always about everything. Because they were Rhode Island . . .
Mack: Because they did not play well with others.
Anne: So, the New Jersey Plan.
Steve: I need to spend some time in Rhode Island, I think I'd really like them, but that’s another . . .
Mack: So anyway, but point being, in the New Jersey Plan, there would not have been a president. There would be an executive council. A plural executive.
Steve: That’s right.
Mack: So imagine --
Anne: How many people?
Mack: Well, it didn't specify in the initial plan, but the idea was different executive functions would each have a different person. And the Romans kind of had something like that.
Anne: I was going to say . . . I was just about to reference that.
Mack: The Romans had two consuls at any given time. Each served for a year, and then they had cloisters, and idols, and prayers.
Steve: Which version of the Roman again? We’re gonna need . . .
Mack: The Roman Republic.
Steve: Okay, thank you.
Mack: Well, and actually what made the empire—well, it was already an empire—but what made the emperor the emperor is the emperor held all of the executive positions at once. So at the state level, to pick an example, Texas has a plural executive. In this sense, you've got the governor --
Steve: Okay, yeah, that’s a good point.
Mack: The lieutenant governor is elected separately. They don't run as a ticket. The Attorney General [laughter] is elected separately. The railroad commissioner, the land commissioner, the agriculture commissioner, Sid Miller, they're all elected separately. So the idea of a plural executive was fairly quickly—there was not a lot of debate around that. The Constitutional Convention, they more or less settled on a president relatively early on. And there were reasons for that. But there have been things in our lifetime where you kind of wonder maybe there should be a better solution—because take Nixon. I mean, Nixon was not above the idea of having the IRS go after people—go after enemies. And then, well, there's also the issue of J. Edgar Hoover, which is, I mean, he’s not the Attorney General, but still . . .
Steve: But that's the, it's not as simple as say, there's one person in charge or two or three or five. It's really, like, you have concentrations of power, and how do these balance amongst each other? And this is not a static, this is a dynamic situation. If you have an FBI director who has the goods on everybody, and he's tapping everybody's phone, he's kind of running the show. Maybe not all the show, he doesn't care about half of it, but he has major influence outsized to his position.
Mack: He was definitely in a position to do what he wanted and to protect himself.
Steve: And there have been plenty of cases where you had presidents, let's say delegate authority to other members of their administration who kind of were largely independent. Kissinger . . .
Mack: Who were the main --
Steve: Co-president maybe is too strong a term, but not far off. And so it's really how do you balance that? One of the problems that you alluded to with Nixon and the IRS is when you have it concentrated in one individual, it's subject to that individual’s whims and is much more likely to have problems, which is why we did the whole revolution thing in the first place.
Mack: Well, and this is why even though we do have the president who's the head of the executive branch, especially after Nixon, there were laws and things that were put into place to try to prevent . . . that even though you're talking about executive departments like the Department of Justice, FBI, that sort of thing where there were, because, I mean, any executive branch department, any executive department, the cabinet departments, any agency, I mean, all of those have to be created by Congress. And so Congress in the . . . what are they called? The organic statute. Okay, the statute that originates the agency or the department or whatever, that can specify the structure and which positions the president appoints but have to be approved by the Senate.
Steve: Well, it can specify whatever Congress wants to specify in it.
Mack: Well, to some extent, yes. And that's why, especially after J. Edgar Hoover dies, and again, he's not the Attorney General, he's not the head of a cabinet department, but he had way outsized power, Congress passed a law saying that an FBI director will be nominated for one 10-year term. They have to be confirmed by the Senate. So that can overlap with multiple administrations. They have to be confirmed by the Senate, and then they are ineligible to serve again as FBI director.
Steve: Most especially that part.
Mack: And that's kind of a nice model, because it's like 10 years is a good length of time to be rendered sort of independent of the political whims of the day but also knowing that you can't have it again. Is like, that's like, okay, I want to go back to the—in the Roman Republic, they had the position of dictator, which is where the word comes from, dictātor, which comes from the word meaning “to speak,” meaning what they say goes, and the position was --
Anne: Oh, like “dictate.”
Mack: Yeah. If there were what we would think of as a national emergency, the Senate could appoint somebody to be a dictator, but the position would automatically end at six months.
Anne: That’s hardcore.
Mack: But that's the check on the person’s power.
Anne: I guess they live shorter back then.
Steve: Well, but it's not like, there was an emergency confronting the country that needed strong, coordinated action . . .
Mack: And you were gonna have absolute power . . .
Steve: Yeah, no. It’s kind of awesome.
Mack: So if you took advantage of that power in some way, everybody knows at the end of six months, you just go back to being a regular person. And so, you can have consequences for your actions if they were not done in the best interest of the republic. And so I'm going to say similarly with an FBI director, 10-year term cannot be renewed. That is a check against an FBI director becoming a Director Hoover.
Steve: It's parallel to, I think we talked about, the president's emergency powers. So they kind of do the same thing, but in theory, in narrow topical things, which don't actually are topical . . .
Mack: Are more sketchy than . . .
Steve: Well they are, but also the Congress wrote 'em shitty, they kinda, “Emergency powers!” but we're not going to actually set like a defined time limit. We're not going to set a conditional thing. They could go on for 30-year emergency. Yeah. Yeah. So they didn't do it well.
Anne: Well, they didn't define “emergency.”
Steve: Yeah. If they were smart and they said if the Congress votes that this is an emergency, then you get six months of power only to be renewed by Congress, otherwise it expires something. They could have set it up better. They should. That's, I think, a reform.
But back to the FBI director thing, I think it's one of those interesting tensions between isolating somebody or some agency from political influence for a level of independence. But the tension between that and the accountability, because ultimately the accountability is really all political accountability. It's accountability to the voters.
Mack: Ultimately.
Steve: Directly or indirectly. So if you're appointed as FBI director, you got to get there because the Senate's okay with you, the president appointed you, yada, yada . . . and you can be pulled from that position for limited reasons by the president. So if you do a terrible job and the voters really call out for your head, you can be pulled.
Mack: Okay, but wait, because it doesn't have, it's not for limited reasons. Trump fired Jim Comey.
Steve: Well, that's fair.
Mack: Right in the beginning of his first term.
Anne: I don't think that had much to do with the voters.
Steve: No. Well, and that's the problem with accountability is, if somebody's able to get rid of you from voter pressure, somebody's able to get rid of you period.
Mack: So if you've got an FBI director—well, this is the flaw in that. I mean, the idea of a 10-year term and not renewed, that's good. But the flaw is if a president comes in and they think they're being investigated by the FBI, they don't like this person's independence, they could fire the FBI director for effectively any reason and put their own person in. And now that's not exactly what happened in Trump's first term because Christopher Ray turned out to not be, I guess, the FBI director that Trump thought he was going to be.
Steve: Well, this, tying it back to our question of the day about the Department of Justice and Independence . . . FBI is part of the Department of Justice, and so as being part of the Department of Justice and directly part of the cabinet, they basically serve at the pleasure of the president, the Attorney General heading, the Department of Justice, and the FBI director. There are other government agencies that are more independent than that. As so far as the law is written . . .
Mack: And some of these are being challenged currently because Trump has fired some people that under the law, he does not have the authority to fire. And we don't need to get into that now because those cases are not . . .
Anne: Give an example of that.
Steve: Library of Congress and the USAID.
Anne: Okay. So those aren't part of the Justice Department, you're saying those are cabinet positions . . .
Mack: Nope. They're not cabinet.
Steve: There are a number of agencies that Congress established through law that are not cabinet agencies, and those people do not serve directly at the pleasure of the president, though they are appointed by the president and controlled by the Senate.
Anne: Because cabinet agencies do serve at the pleasure . . .
Steve: Correct. And he can fire them for whatever they want. The head of the Federal Reserve. That is an excellent example of a highly independent agency where, yes, the president and Congress have a role in selecting the head, but they effectively, once selected, serve very independently . . . two-year terms? I think there's a cap on number of terms.
Mack: The number of terms, because it's not a two-year term.
Steve: Okay.
Anne: So how does the president come into play in that position?
Steve: Nominates either the head of, or, more often than not, a member of the governing board. There are a lot of these . . . Federal Reserve, NASA, Amtrak.
Anne: Let’s talk about how that independent agency works though. So how do you select the head of NASA?
Steve: Head of NASA is, I believe, appointed by the president and confirmed by the Senate, I think. And then they're there. But the law is written in such a way that it's not just at the pleasure of the president. They can only be dismissed for cause.
Mack: Something like that.
Anne: By the president or by Congress?
Steve: By the president but --
Mack: Although anybody can effectively be dismissed by Congress. If they're a government official, they can be impeached and expelled. But that's how Congress would do it.
Anne: Right. Through the impeachment process. And I suppose Congress could theoretically abolish that group? They could propose, we're dissolving NASA. And if it got the votes and went through . . .
Mack: Then there would be no NASA.
.
Steve: There would be no NASA, and there would be nobody there.
Anne: And so the president decides he hates the head of NASA, what can he do about it?
Steve: So if “A” he tries to find cause to fire them, or he just fires them and then he gets lawsuited because he can't do that.
Mack: So there's some lawsuits --
Anne: So that's what we mean when we're talking about an independent agency?
Steve: Correct.
Mack: And, but I also want to mention though that, I mean, there is a theory that when Congress puts limitations on who, if it's somebody that's technically like executive branch, because it deals with enforcement or regulation, whatever, but they say that, okay, the president can't fire this position, there is a theory that that is wrong, that that is not constitutional, that the president, even though the removal power is not specifically mentioned in the Constitution, that it is a power the president has, and the president can remove anybody in the executive branch regardless of what --
Steve: What law is passed by Congress.
Mack: And that if Congress put that caveat, that restriction on there, that that would be unconstitutional. Now, that has not, we haven't gotten to the point that that's at the Supreme Court yet.
Anne: So this is all theory right now based on the Constitution.
Steve: Well, theory and 200-plus years of practice. For instance, the really extreme idea is that literally the president can reach out and directly fire anybody that displeases him, ignoring all of the civil service protections that have built up over a hundred-plus years.
Mack: Yeah. We talk about this.
Steve: So there've been all this stuff that Congress has passed and other presidents have signed into law that protects civil servants in a variety of positions from . . . arbitrary firing.
Mack: And here's where I want to bring up. I want to go back to the Librarian of Congress. The Library of Congress is a legislative agency. There's a few legislative agencies including the GAO, congressional Budget Office, and so on.
Anne: What’s the GAO?
Mack: Government Accountability Office. It was originally known as the General Accounting Office. And basically they're a watchdog agency, and they answer to Congress. So in the Constitution, I was looking this up earlier today, there isn't anything that really distinguishes between, oh, you could have legislative agencies and then most of the, if you're creating agencies, they would be executive. There isn't anything, it would be taken as implied that Congress, in order to facilitate doing its job, can create certain agencies that just answer to Congress, like the Library of Congress or the general accounting, or Government Accountability Officer—sorry, I keep—but there isn't really anything. It just mentions Congress can . . .
Steve: Well, it doesn’t say they can or they can’t. And this is one of those where at the end of the day, Congress can write a law to do almost whatever it wants within the bounds of the Constitution. And if enacted into law, signed by the president, then it's a thing. If they want to create a library for themselves, they can do that. If they want to create a quasi-independent agency called NASA, they can do that. So they can do all of these things because they can create whatever they want to create, basically.
Mack: So Trump—I’m going to put this out there as a supposition—that Trump firing the Librarian of Congress is deliberately, assuming that she's going to say, “Hey, you can't fire me” . . .
Steve: I believe she has.
Mack: . . . this would create a case that could go to the Supreme Court where they could specifically . . .
Anne: They could rule on it.
Mack: . . . get a ruling as to whether or not Congress can create agencies that are purely for the legislative branch and partitioned off that the president cannot touch. They could rule that because that's what everybody has assumed up to this point, that Congress could do. Because why not? Because why else?
Anne: Kind of like, we don't have a king, and we wouldn't want a king.
Steve: Pretty much.
Mack: There isn't really any reason for a president to want to fire the Librarian of Congress besides creating this case or assuming that a case is going to be created, to have the Supreme . . . So somebody was thinking about this.
Anne: I think you're underestimating the control of the news cycle. But yeah, go ahead.
Mack: But that this is an effort by the Trump administration, people in the Trump administration, in order to get rulings from the Supreme Court. They're hoping they get ruling from the Supreme Court that really puts them, not just the unified executive theory that all power emanates from the president, therefore he could fire anybody at will, civil service be damned. But that anything that Congress has created as a legislative agency, including, for instance, the Government Accountability Office or the Congressional Budget office, that the president could just fire all of them.
Steve: Yes. Now, it could be they were very clever and set up the president or because they just got pissy and fired somebody they didn't like and didn't realize they shouldn't. Either way, you end up in the same place. But I will point out that if they say that yes, the president ultimately can fire anybody who is an agent of the government, let's say, whether they're in the Congress or executives --
Anne: Where does that lead?
Mack: Spoils system.
Steve: He can fire Supreme Court justices.
Anne: I was going to say.
Mack: Uh-uh.
Steve: Yes, he can.
Mack: No. No.
Steve: If he can fire Congressman --
Mack: No, he can't.
Steve: Why not?
Mack: Because that wouldn't, because we're talking about specifically the clauses dealing with offices that get created, not offices that were created by the Constitution. If it's an office that's in the Constitution, how a person gets into that office and how a person leaves that office is detailed in the Constitution. The president would not be able to remove --
Steve: Then let's work up to that. Under that kind of precedent, assuming that the Supreme Court says the president can fire any government agent not in the Constitution, can the president fire a federal district judge?
Mack: No.
Steve: They’re not in the Constitution. Try again.
Mack: But, no --
Steve: No, they are not in the Constitution.
Mack: The judiciary is referenced.
Steve: Where are district courts referenced in the Constitution?
Mack: First of all—I'm answering your question. In Article I, Section 8, Congress has the power to create tribunals inferior to the Supreme Court. And then in Article III, it details what the jurisdiction of federal courts will be. Whatever federal courts get created . . . here's what the, it says this is how federal courts will operate. And it also says that anybody that's appointed a judge or justices of the Supreme Court shall serve for life on good behavior subject to only to impeachment and expulsion.
Steve: Does it give Congress the power to create federal agencies and departments?
Mack: It is implied. That's an implied power from Article I, Section 8, Clause 18, which is known as the necessary and proper clause and so on. And the Supreme Court has ruled on that.
Steve: And so then in theory then . . .
Mack: Federal district courts are not an agency of the federal government.
Steve: No, I take your point that it says they can create inferior courts, and one would infer that a district court counts as an inferior court. And therefore, magically, federal courts are somehow protected by the Constitution and anything else is not.
Mack: Not magically, because they're mentioned in Article III.
Steve: It doesn't say district courts, it says inferior courts.
Mack: But district courts are. They're Article III courts.
Steve: The constitution mentions that the president is immune from any and all prosecutions and indictments and evidence collection while he's in office?
Mack: It does not. But it also doesn't mention . . .
Steve: But that was also created, somehow.
Mack: Well, it wasn't created. It was an opinion from the Justice Department.
Steve: Well, it was a ruling by the Supreme Court as I recall.
Mack: No, it was not it. It's an opinion from the Justice Department from the early 1970s.
Steve: That he can't be indicted. I'm talking about Trump v the U.S. and the Supreme Court ruling.
Anne: Trump v. United States.
Mack: That is that a president could not be . . . Oh, so and you're saying that in that ruling, they specifically said that they acknowledged that a president couldn't be charged until they're out of office?
Steve: Yes.
Mack: Is that in that ruling?
Steve: Well, as I recall, no, it’s . . .
Mack: Or did it just say a president could not be charged with something done while in office? I mean, something done while in office. It didn't specify when they could be charged. I don't think it did.
Steve: I don't know. I think it was cannot be charged for things like while in office.
Anne: That they do in pursuant to the office, or something.
Steve: Yeah, there was a little bit of . . .
Anne: If they were doing it as a president, then it's all cool.
Steve: Basically.
Mack: So the theory is that the president would be able to fire anybody, number one, in any executive branch agency that was created by Congress. But also—and this is what I'm saying, by Trump firing, trying to fire, saying that he's fired the Librarian of Congress—saying that any agency created by Congress where Congress tries to say, oh, but this is a legislative agency, that they would try to use the language of the Constitution to say the Constitution makes no distinction regarding the clauses about appointing ministers and councils subject to the approval by the Senate unless it's an inferior position that doesn't require it.
Steve: So I guess two different things here. One is the question of whether or not the president has jurisdiction over anyone not explicitly called out in the Constitution. Like judges.
Mack: Not judges, but executive branch. And again, the removal power is not specifically --
Steve: Yeah, I was saying excluding judges, and I suppose congressmen and senators as well.
Mack: Yeah.
Steve: Because they're mentioned in the Constitution.
Mack: You would violate separation of powers.
Steve: You would think influencing a legislative agency would too.
Mack: How? Except that legislative agencies are not specifically mentioned. But what is specifically mentioned is how representatives will be elected. How senators will be elected and how they can lose office. And so if you're going to change that, you would have to have a constitutional amendment.
Steve: What about a representative's congressman's staff? Can the president fire the chief of staff of a senator? They're not specifically mentioned in the Constitution.
Mack: No, they're not. And so I, here's what . . . I think that's a good question. Because if the president and his people are theorizing that any of the quote/unquote legislative agencies, they could draw a line. I mean, if they're making an argument in front of the Supreme Court, if they're doing oral arguments, they could, if a justice says, what about the chief of staff of the majority leader in the Senate? What about all of their staff? Can the president fire them? The president, the lawyers arguing on behalf of the president, which I guess would be the DOJ solicitor general or whatever, could draw a line saying, if you're talking about personal staff of members of Congress, but that's not what the Library of Congress or the Congressional Budget Office or—and I really don't like the fact, by the way, that I’m being put in this position of trying to come up with a defense for this bullshit act . . . damn it.
Anne: Well, not to pile on.
Mack: Pile on, by all means, madam producer.
Anne: But if it's done as an act of the president, can’t he fire somebody in the Supreme Court? Because the Supreme Court said if he's done it as an act of the president, they can't like charge him for it.
Mack: Okay, well, alright. But it would have no force and effect of law. I mean, if the president is like --
Anne: Can God make a rock that's heavy enough for him, that he can't lift it?
[laughter]
Mack: If Trump says, “I fire the Chief Justice,” or does it --
Anne: As the president I’ve decided . . .
Mack: [imitating Trump] “Mr. Chief Justice: you're fired.” The Chief Justice can say, since the president has no authority, I’m not leaving,
Steve: Apparently the Chief Justice can say whatever the hell he wants. But . . . let's bring it back a little bit to a little more reality and also the DOJ. What if the president just decides to arrest the Supreme Court?
Mack: That’s a problem, because, and we talked about this a few months ago.
Anne: Yeah. We all agree that's a problem.
Steve: Concur.
Mack: No, this was a few months ago.
Steve: Yeah, we did touch on this.
Mack: Where there was a state judge that was arrested. And we talked about what happens if . . . No, that is a legit concern. And that is where, and I know a lot of people are concerned about, we're creeping in toward fascism—or maybe not creeping, maybe going in an avalanche into fascism --
Anne: Jack booting towards fascism . . .
Mack: If we start having government agents arresting members of Congress, which Trump has sort of impliedly threatened . . .
Steve: Not implied. It’s been explicit, but yes.
Mack: . . . by saying that Democrats should be arrested or whatever, or arresting judges, then we have a . . . then that's a fascist dictatorship, right there.
If the president is going to have government agents . . .
Anne: So, it doesn’t matter what the Constitution says.
Mack: At that point it won’t, because it will be a matter of force and what the government agents are willing to do.
Steve: The Constitution doesn’t say anything about, “Oh, you can’t arrest them,” because there’s always a situation that an elected official commits a crime, a horrible crime.
Mack: If they’re arrested for political reasons . . .
Steve: If they’re arrested for trumped up charges, like “oh, I just made up a thing. Oh, I totally saw them do this horrible, terrible thing. We're arresting them and then holding them.” Yeah, I mean that's how this works.
Anne: We’ve been talking about the possibilities that the executive branch becomes and more powerful than the other two branches. Makes a power grab, basically. It takes acts wherein there is a lopsided power dynamic in their favor. And one of the ways that they would be able to continue to do that is if the Justice Department only follows their orders. Correct?
Mack: Yes. And if the Justice Department were independent.
Anne: Right. Well, so because the Justice Department right now is part of the executive branch, correct?
Mack & Steve: Yes. Yes.
Anne: Okay. So they report directly to the president.
Mack: The president, yes.
Anne: And that is a cabinet position. So the president doesn't have to wait for anybody to sign off on it. There are no caveats. There are no clauses.
Mack: He can fire him right now.
Anne: He can just wake up and go --
Mack: You’re fired.
Anne: Send out a tweet, as he's done before, to fire them.
Mack: A “truth” now.
Anne: Yeah. A what now?
Steve: Truth on Truth Social.
Anne: I thought it was an X. Is he not X-ing?
Steve: I think he truths.
Anne: Okay.
Mack: He does more Truth Social.
Anne: That’s true. He kind of broke up with his “ex.” But, anyways . . .
Steve: [rimshot]
Mack: That was awesome.
Steve: That was well done.
Anne: We’re talking about can the president use the Department of Justice to continue that control of power, right? To police, basically, the other two branches of power.
Mack: Right. So theoretically he can't, but, so what the question really is . . .
Anne: Why can’t he?
Mack: . . . if he does it, what's to stop him?
Anne: Well, no, no, no. Let's start with, why can't he?
Mack: Oh, okay. That it would be, so, well, first of all, I mean, Supreme Court justices, members of Congress have individual rights. In fact, more than that, members of Congress, they are privileged from arrest while Congress is in session. Although it's, except for felony, bribery or treason. Yeah, but I mean, well, okay . . .
Steve: I’m going to go. The general abstracted idea was that there was always kind of a barrier of federal prosecutors acting as members of Congress or judges because of a respect of the separation of powers.
Mack: Yeah. That they’re not just gonna . . .
Steve: If we're going to go after a congressman, we have to have really good evidence.
Mack: And that's happened before.
Steve: Yeah, with some frequency. There have been members of Congress who've accepted gold bars from people. . . . So, I mean, any number of, you can find cases where they have arrested members of Congress, but it's few and far between.
Mack: But it was clear to everybody . . .
Steve: Extraordinarily clear.
Mack: Usually even members of that person's party were like, take them.
Steve: So, generally, there's been a healthy respect of, “No, no, no, we can't just go after people because we think maybe they’re problems or we don't like them because there's a separation of powers and we have to respect that distance.” That's largely been ignored, recently. So that's part of why “they can't do it” is not as strong a statement as it used to be.
Mack: Yeah. Now we're thinking in terms of, and . . . to me it's not accurate to say it's just norms. I mean, part of it is norms, but part of it is also there is separation of powers, and that there are things that are done or not done. And there have been Supreme Court cases that have recognized in the interest of separation of powers this is the way things have to be. But yeah, no, because of things that have been said by Trump himself and some members of his administration, I think that brings us to the question of, “If they do these things, what's to stop them?”
Anne: Right? So up till now, has it simply been no president has tried this?
Mack: Well, no president has.
Steve: Well . . . if, many years ago, the president had directed an FBI director to go arrest a member of Congress because he pissed him off, they would've pushed back—the agents, the head of the FBI—would've pushed back and said, no, sir, we can't do that, separation of powers. That violates the Constitution . . .
Mack: It would have been in the news. It would've on public program’s . . .
Steve: It would've been a whole thing, and it wouldn't have worked, and it had blown back and it would've damaged him, he wouldn't have done it. Or . . . and part of that is they knew that even if they had tried, as soon as they started doing this, they knew their case would fall apart in front of a judge who would enforce the separation of powers and say, “Oh, hell no. You're not getting away with this crap.” And so, anticipating that, they would've stopped it before it happened. That's the concern now, is that suddenly all that common understanding people had about what was and wasn't acceptable is kind of eroded. And so if now he tells his FBI director to go arrest a member of Congress that pissed him off, well, they're probably going to go do it. Now, then they're going to get in front of a judge. The question is, what is that judge going to do?
Mack: Although I think he wouldn't have the FBI do it. Why not just have ICE do it?
Steve: Yeah. But that's kind of the complicated thing. We're, in theory, talking about Justice Department independence. ICE isn't part of the Justice Department, which complicates this picture.
Anne: Who is ICE part of?
Steve: Homeland Security.
Anne: Who is Homeland Security part of?
Mack: Kristi Noem.
Steve: Yeah. They're parallel and separate from Department of Justice.
Mack: Cabinet departments.
Steve: Yeah. Two different departments. Co-equal, if you will. But, I mean . . .
Anne: No, I understand. Well, okay, so, specifically the Justice Department, why is the concern whether it's independent or not?
Mack: Federal prosecutors, is one big thing, because . . . well, okay, this is one of those things I'm going to say all, but it may not exactly be a hundred percent, but federal prosecutors basically come under the Justice Department, which is why when the Justice Department does things like issue guidance that you can’t indict a sitting president, that's guidance that goes to federal prosecutors. There are federal prosecutors assigned to every federal judicial district court, and that's going to be multiple prosecutors. And it depends on which court it is. But if you're arrested, that's one thing, but it's not . . . and this is one of those things that the news gets imprecise about a lot, that to me gets a little aggravating. I know other people will say it's splitting hairs, but they will say things like, “The FBI charged somebody.” No, the FBI does not charge anyone. The FBI, at the end of an investigation, can turn it over to federal prosecutors and maybe even recommend charges. But it is federal prosecutors that will seek an indictment from a grand jury for that person, for that person to be charged. The law enforcement people are not the one to do the charges. It's the prosecutors.
Steve: Correct. Yeah. . . . Why do we care about the DOJ? Because they're doing all the arresting and investigating and charging of the folks. And, frankly, they have two sides to that power. One is who do they decide to investigate and arrest and charge? Who do they decide to not investigate and arrest and charge? So, when it goes to the independent, and, frankly, the DOJ is already, in practice, historic, recent history, more independent than most departments.
There are certain practices . . .
Anne: Of the cabinet you mean?
Steve: Yes, of the cabinet. Yeah. They're not an independent one like NASA, but they are not the Department of Commerce.
Mack: And in part because of some things that happened during the Nixon administration.
Steve: Yes.
Mack: There were concerns about whether or not the FBI was doing everything they should during the Watergate investigation.
Steve: So, the Department of Justice is investigating, arresting, and prosecuting people for federal crimes. The closer they are to the influence of the president, the more subject they are to his whims, political or otherwise.
Mack: And the president can fire all federal prosecutors and appoint new ones.
Anne: At any point in time for whatever reason?
Mack: Yes. And presidents have done that, both Republican and Democrat.
Steve: Yup. So there has been a tradition and practice norm, if you will, of trying to keep at an arm's length, especially since Watergate, in order to let them, allow them a certain degree of independence, which is always intention with the idea of the president's policy preferences should also be executed, should be implemented by the Attorney General and so forth through the Department of Justice. But they try to keep it at a non-individual case level. So it's, in theory, less problematic. There's always a tension there. The whole independence—does it need more independence? And how would that happen? You might want it, you could argue that it would need more independence because you don't trust the fricking president to not screw around with individual cases, frankly . . .
Mack: And absolutely politicize law enforcement.
Anne: Well, okay. So that is, we've established how they're not independent, why we think they should be independent, why it's a concern.
Steve: We painted that picture.
Anne: How do you make the current situation . . . how do you take the current Department of Justice—and I don't mean current as in this current department, I mean the current structure as it exists. If we wanted to change that to make it independent, what would be the process of doing that?
Steve: I’m going to argue there are three ways to do it. Okay. And Mack will be batting most of these down. But let's start with, it's still a Department of Justice, it’s still in the cabinet, but Congress enacts laws that enforce some, the separation we've kind of come to expect between the Attorney General and the president.
Mack: Just strengthens the existing . . .
Steve: Yes, formalizes, strengthens, put legal weight behind the, “No, no, you can't talk about this. No, you can't fire. . . .” The Attorney General, maybe they give 'em a minimum term length, that kind of thing.
Anne: Do they have to do that on a case-by-case basis, or can they do one big law where they . . .
Steve: However they want to do it.
Anne: . . . write that all out?
Steve: For simplicity let's say they do one law that kind of builds in a bunch of safeguards.
Mack: And do you want me to knock these down one at a time?
Steve: One at a time, please. But let me see if I can preempt you on this one. The first one though, I think, the more Congress steps in between the president and members of, the other members of the executive branch, the more constitutional problems they're going to have. So I don't know that that's workable. I just kind of want to start at one end of the spectrum of saying, in theory, they could do it that way.
Anne: They could do that, but then it could be challenged up to the Supreme Court.
Steve: Yeah. I think it's not really practical or advisable.
Mack: They could rule against it.
Anne: And the Supreme Court could go, “The Constitution says . . .”
Steve: It’s separation of powers, the Constitution . . . stay in your lane.
Mack: The Constitution says, Article II, Section 1, “the executive power shall be vested in a president of the United States of America.”
Steve: It’s going to be hard for them to set up rules between the president and his employees, is another way of thinking of it. There's going to be a problem there. So I don't think that's viable. So option number two is that you actually cleave out Department of Justice and make it more like the Federal Reserve or the CIA or NASA where they're a more independent agency.
Mack: The CIA is a bad example, sir.
Steve: I know. That's why I put it in there.
Anne: The CIA is independent?
Steve: Yeah, I didn't know that either, but yes. Well, they're in this more independent category. So.
Anne: So they're appointed by the president, but there are certain caveats and rules attached to whether you can fire them or not.
Mack: The DCI, the director of Central Intelligence of the CIA, they answer only to the president. They're an independent agency that answers only to the president.
Steve: Right. Now, but let me, there's a wide variety of independent agencies. We've talked about like NASA and the CIA where there is a single head. A lot of these independent agencies have a board, and oftentimes those boards are required to be bipartisan. Federal Election Commission . . .
Mack: But sometimes you have that person who's the head or the chair --
Steve: Sometimes. Yeah, they're all . . .
Mack: Like the FEC.
Steve: Yeah, they're all a little different, but that gives you a model here. You, in theory, you could have a Department of Justice where you've got a four-person Commission of Justice: two Republicans, two Democrats. That could be set up. There are other independent agencies set up very much like that.
Mack: And then nothing gets done.
Steve: And then nothing gets . . . Yeah, I mean not it's the solution. I'm just saying that's the kind of thing you're thinking of when you're thinking of more independent agencies in that model. It could be a NASA, where you still have one Attorney General, but that Attorney General, maybe like the FBI director, has a fixed term of seven years or whatever.
Anne: So to separate them out that strongly, though, is still, you're passing something in Congress . . .
Mack: Correct.
Anne: . . . which could be rolled up to the Supreme Court, and the Supreme Court could go “nahhhh . . .”
Steve: And before that, it's got to be signed by the president. So the president's got sign --
Anne: Oh, the president has to agree to it?
Steve: Yeah. It's a law. So the president has to totally agree—yeah, you're right. I think this would be a great idea.
Mack: And the only way it would get passed . . .
Anne: Oh, this is like campaign finance reform.
Mack: Oh, yeah. Because there would have to be . . .
Steve: Yes. Yes, it is.
Mack: . . . a two-thirds vote in both houses. Because assuming any president would veto it, you would have to pass it over—you’d have to do a veto override and . . .
Steve: Well, there's scenarios where you'd have a president who's signed off on it.
Anne: Yeah. Like say, after a president gets impeached and thrown out of power . . .
Steve: If there's a giant flaming dumpster fire but he acknowledges the flaming dumpster fire, the next president might be obligated, might have run on a platform for that matter of, you know what?
Anne: Yeah, let's reform the executive branch . . .
Steve: I'm going to reform the Department of Justice . . . It could happen. I mean, it's conceivable.
Mack: Well, okay. I don't think it's likely, but . . .
Anne: We’re not talking likelihood. We're not playing at odds here, right now. We're talking theory.
Mack: To be fair, I mean, the one thing that I think you would have to do if you're going to do this—there's no realistic way it's going to happen, but, and I'm guessing it's your third item.
Steve: I’m not sure exactly what my third item was, but . . .
Mack: Well, I'll just invent your third item.
Steve: That’s probably best. Well, I was going to say, the other one I was going to go was I was going to go a little more ridiculous, which was . . . actually that gives me a fourth one. So third one will be, there's another class of odd quasi-governmental agencies that are even more independent than NASA and Amtrak.
Anne: Do tell.
Steve: Two examples are Fannie Mae and the Smithsonian, where they're effectively chartered by Congress but as independent or completely independent organizations.
Anne: The Smithsonian is chartered by Congress?
Steve: The Smithsonian is chartered by Congress, basically as a corporation, same as Fannie Mae, Freddie Mac, and the National Art Gallery.
Anne: The National Art Gallery’s a corporation chartered by Congress?
Steve: Congress can do whatever it wants. In those days. Whatever reason it felt like, to have a corporation . . .
Mack: The first bank of the United States was chartered by Congress.
Steve: So that's another way to do it. The fourth way, which is a large umbrella, and it could be anything, almost, I'm just going to say, constitutional amendment.
Mack: That’s the one I was going to say. You’d have to . . .
Steve: If you come up with a constitutional amendment and pass it, which, not going to happen.
Mack: No.
Steve: You could do anything.
Anne: Why isn't it going to happen?
Mack: Because . . . there's actually a couple of different ways in Article V in the original Constitution, it talks about how you can amend the Constitution. And there's actually couple of different pathways for that, but the main one that has happened every time but once is an amendment is proposed by Congress, and that takes a two-thirds vote of both houses of Congress to propose the amendment. And then it takes a three-fourths vote of the state legislatures or state ratifying conventions, which happened once for Prohibition.
Anne: Okay. It’s the states that always gets it. Okay.
Steve: Well, Congress is a heck of a hurdle too.
Anne: Well, no, no, no. I was trying to remember why amendments were so hard. And it's the state's ratifying that’s the big issue.
Mack: And incidentally, we should also say this because presidents have expressed support for constitutional amendments or whatever. They have no formal role in the amendment process.
Steve: Nope.
Anne: Right. They just get to cheerlead.
Mack: Lincoln talked about wanting to sign a constitutional amendment. His signature was not necessary. He wanted to sign it because he wanted to sign it.
Steve: Made him feel good. So that was one. And that could be configured however Congress felt like configuring it. So who the hell knows, it could be anything.
Mack: Well, I want to talk more about that one . . .
Steve: Then we get to the fifth version, which actually is my favorite one, is Congress acts like an independent branch of the government and does their damn job.
Anne: Well, isn't that covered in one through three?
Steve: No, this is like you don't have to restructure shit. You just have to haul people in front of Congress for hearings and actually think about who you're confirming as Attorney General instead of passing the buck.
Anne: Oh, you mean like prevent . . . preventative . . . Department of Justice . . . miscarriage . . .
Steve: Well, preventative . . . Do your job on the appointment . . . And then if . . .
Mack: So are you going to ban political parties in order to do that?
Steve: No, but until recently, they actually kind of halfway did their job.
Anne: How recently are you talking, buddy? Like a hundred years?
Steve: Eight years ago . . . No, I mean like Jeff Sessions.
Mack: Twenty-five maybe.
Steve: No, yeah. Jeff Sessions.
Mack: Well, yeah, Jeff Sessions, because he didn't actually, he recused himself from a thing.
Steve: He did. He may not have been the best, but he was of the class of, hey, you're actually competent at this. You meet some qualifications.
Mack: Uh . . .
Steve: Compare him to Pam Bondi.
Mack: Oh, yeah. No. No. I mean, in comparison.
Anne: Well, that's, come on. [In] statistics there are things called outliers. You can't compare the outliers to the average . . .
Steve: Well, but . . . The outliers, the outliers that we’re worried about.
Anne: I understand the outliers of . . .
Mack: Because that's where we are.
Anne: Yes. I got it.
Steve: I want to point out, it's not just the appointment. I mean, Congress should actually vet whoever's being appointed for Attorney General and FBI Director and so forth. They should also, if there's appearances of poor conduct in that agency, they need to haul the people in front of them for testimony and investigations and things as their oversight of duty.
Mack: The chance of impeaching them and expelling them. Yes.
Steve: So they can take an active role in watch-dogging the agency as well, which they are not doing.
Mack: Right. But what you are going up against is the expectations of party discipline and party loyalty. I think the only way realistically that you could make the Justice Department as independent as it needs to be, even though it's a way that would never happen, would be with a constitutional amendment. So I say realistically in terms of what would be constitutional, and it would be constitutional because you'd make it a constitutional amendment, even though it would never get passed. But if you were going to make it a constitutional amendment, you'd run into issues, because the Constitution says the executive power’s vested in a president. Okay, so now you're rewriting that. You're saying some of the executive power’s in the president, and then some would be in an Attorney General and a Justice Department.
Steve: Yup. But that's what amendments are for.
Mack: But here's the thing, it's going to depend on how, like, if you're changing the structure of the executive branch, how do you make sure that separation of powers with the other branches is still in place? How do you make sure there's checks and balances within and without? But with, so who would the DOJ be . . . Would they be responsible for enforcing every last federal law? So the president would no longer be executive? He would just be commander in chief?
Steve: An administrator or something?
Mack: And so you would have somebody who's an executive and have somebody who's commander in chief? Then you get into some Roman shit.
Steve: No, you do. But I think what you can do, if you were to go down a road of a constitutional amendment, I think you can do it in a way that is analogous to the other options. You could have a department under the president, but that is more insulated. You could have --
Mack: Or just does the criminal . . .
Steve: Or just does criminal, or you could have that kind of independent agency–type structure. You could have whatever you wanted, even if still something very much like what we have, but you could enshrine in the Constitution things like the president can appoint, must appoint the Attorney General, but the president can have no other contact with the Attorney General and can only fire them for cause. You can say crap like that . . .
Mack: The ten-year term, and the president may not remove them.
Steve: Yes. Yeah. I mean, exactly.
Mack: They could be impeached and expelled.
Steve: You could keep it exactly the same as it currently is, more or less, but formalize a lot of those independence and barriers and do it in the Constitution so the Supreme Court can't do a damn thing.
Mack: But then you'll still have to worry if that person has that much independence from the president of that person becoming grand inquisitor.
Steve: Well, yeah. Which, as you mentioned, that's when you have the impeachment.
Mack: Well, and also that's where the ten-year term comes in.
Steve: Yeah, the term limit. And that's the thing, you'd have to build in some safeguards like limits . . .
Mack: And maybe we don't do it as ten, maybe it's a five-year thing.
Steve: Yeah. You have a fixed duration term, impeachability . . .
Anne: And you could do it staggered from the presidential elections. So they're every four years, but it's four years mid-presidency. So, that way less . . .
Mack: I’d still want it to be more than four years, and five may be too short. Seven years.
Steve: Six.
Mack: No, that matches with the Senate is.
Steve: Yeah.
Mack: Do it as seven.
[01:09:56]
Steve: So . . . I'm going to summarize it all by saying we talked about Department of Justice being independent, why there's advantages to it being independent . . .
Mack: And why it would also be, could be a can of worms.
Steve: Yeah. But there's still a need for some accountability.
Mack: Actually, I'm sorry. Worms would be health and human services . . .
Steve: [snickers] Only brain worms. But also why anything you do to significantly change DOJ independence requires an act of Congress, which gets you back to the original problem of, well, maybe if Congress just did their damn job. And, I would argue, on the downside, they've gotten away with not doing their job because the voters have allowed them to. But that also means the fix is us, and we can fix it anytime we want.
Mack: That’s on us.
Anne: Well, not anytime we want. We have to wait for another year and a half . . .
Steve: Every couple of years we get a chance to fix it.
Anne: But we do have regular opportunities that thus far we have not been taking full advantage of.
Steve: Nope. Although again, it only takes really a relatively small chunk of us to decide to really get engaged and change that.
Mack: And let me say something because, after, I guess the Attorney General said, “Oh, there are really no Epstein files” or whatever. There were a number supporters of President Trump who said, this is one of those things that I was counting on. This is just bullshit. He's part of it. And so there's a lot more . . . I'm not saying that everything got flooded with, but all of a sudden a lot of people are saying, they’re referring to the uni-party, are people that been like Trump supporters or whatever are now like, no, it’s all bullshit, whatever. And so there's no difference between the Democrats and Republicans, if we can't trust the Republicans to release the Epstein files or do whatever. And so if that persists the idea of, oh, it's just the same, that will, I mean, we are talking about the next midterms, where yeah, they're a year and a half away. So a lot can happen. But I'm just saying if it persists, that idea that there is no real difference between the Republicans and Democrats—historically, when the nation has felt that way, that actually suppresses the vote. That tends to have people lean toward, then it doesn't matter what I do. So why should I even bother to vote? So if that trend continues, we may see a lower voter turnout, which is all the more reason why . . . get your ass out and vote.
Steve: Yes. Well, and I think part of that is also kind of that when people keep, “Oh, vote for me. Put me in power. I'll do these and this and this wonderful thing for you.” That's easy for them to say when they're not in power, then when they're in power, they have to actually deliver, and people eventually start noticing: “Oh wait, you said you were going to do whatever, you're not. Now I'm really pissed.” But, yes, everybody get out and vote. But also, you don't have to wait. That's not the only thing you get to do as a citizen. You can reach out to your representatives and call them. You can write them letters and emails. You can let them know what you're thinking. You can march. You can volunteer with organizations to help people, even if it's not political, helping your community organizations, all those ways of engaging with your community and your leaders count because yes, every couple of years you get to vote for folks, but in between, you still get to let them know what you're thinking, and that influences them too.
Mack: Or even, show up at a party meeting, at the county level, precinct level, whichever it is for wherever you live. And if you want to pick one of the parties to be active in, and if you want to get involved in party politics, if you want to make that step, that's something you can do in it. And it's a matter of being active in it.
Steve: Yep. It's not a large group to be, have influence in.
Anne: There are also very specific things going on right now in reaction to this particular administration. Because those are all good advice things for all the time, for being a good citizen, as far as being involved. As far as specific things of the crazy that's going on right at this moment in time—because we've got some unique crazy going on—Steve, you were mentioning that you made an appointment at a Tesla dealer.
Steve: Yeah, and this is petty, but it makes me feel good. Every now and then when I'm bored, I'll sign up for a test drive at a Tesla dealer so they can reserve a car for me that I never show up for.
Anne: So you waste somebody's time who supports a fascist, you know. I recently discovered there's a group called Data Rescue Project that is literally going and taking the data off websites that --
Mack: Federal government.
Anne: Federal government data and saving it and preserving it.
Mack: Especially weather data.
Anne: And what's interesting is it's various groups are doing this effort and they're coming together under a data rescue project, but it's a lot of different people working at this, and they're trying to organize their events, and I wanted to support them. It's a little higher-level data capturing than I'm capable of as far as computer programming goes. But what was interesting is they have a secondary goal called Save Our Signs, and it's saveoursigns.org. And if you're at a national park this summer, or anytime, but take a picture of the signs, take a picture of anything that—because right now we have people in the government saying, “Report the signs if they say things that discourage one particular group that's pale and didn't come to this country until much later.” Anyways, take a picture of the signs that document science, that document history, that document various people of color playing a role in our society, and you can upload it to this group, and they will make sure it stays documented. And so it's little acts of rebellion like that in these difficult times that will make you feel better.
Steve: Hugely actually.
Anne: Even if they're silly.
Steve: Even if they're silly, try it. It will make you feel --
Anne: It’s amazing what it does on a hard day, on a hard news cycle day, to make you feel better.
Mack: And also, I mean, there are still good things that are happening. And sometimes that takes a little digging, but there are, I'm going to say, increasing numbers of social media accounts that are like, here's something good that happened today, and that's important to see that this is still, that there are people who are involved who are making a difference.
Steve: Well, and to the national park signage thing, they put a thing on all the parks about, “Hey, report if basically if any of these signs make you feel uncomfortable.” And there have been any number of people, I think honestly the majority who've reported to those websites, “Yeah, I'm uncomfortable with this stupid program to rip the signs down.”
Anne: Right. Yeah.
Steve: Just because somebody put up a hotline fishing for one kind of response. It's a hotline, use it. You can fill it with whatever you want.
Anne: Like in Texas, the government decided we needed national hotlines to report certain behaviors by certain groups in this state. And a lot of people are calling in and reporting the governor.
Steve: Exactly.
Anne: And listing his phone number. And yeah, it is childish, but it wastes the time . . .
Steve: Exactly. It's still actually effective.
Anne: . . . of people who are causing problems for other people.
Mack: And if it thwarts an activity of elected officials or government, that is something they shouldn't be doing in the first place, that's a way to resist.
Steve: It’s effective, honestly. It wastes their time. It wastes their resources, it slows them down.
Anne: And it doesn't hurt anybody.
Steve: And it makes you feel good.
Anne: Yeah. And it feels like you did something. So . . . here's to doing something in the face of general . . .
Mack: Adversity.
Anne: Adversity.
Steve: Doing something.
Glasses Clink.
Anne Trominski was born and raised in El Paso, Texas, but now resides in San Antonio. She graduated from Trinity University after majoring in English and Communication. She spends her dull working hours as an editor for a major publishing company and her personal time as an oft-frustrated writer and amateur podcast producer. She has written two yet-to-be published novels, countless reams of heartfelt poetry, and has tried her hand at blogging a few times. Anne is also a gastronomist, amateur chef, and student of health science. She is a constant learner and explorer and likes to drop knowledge on others like it’s hot. Most recently, she helps disseminate social science info through the podcast Civics on the Rocks.