> While it’s true that the Department of Justice sits within the executive branch, the assertion that it is simply “subordinate” to the President - functioning as his personal legal arm - is an oversimplification that misses both the design and evolution of constitutional governance.
The idea of the republic as opposed to a monarchy is that no part of the government is anyone's personal...well, anything...but that doesn't really negate the degree of control the President exercises, both in theory and in practice barring highly variable personal restraint, over the DoJ.
> The Supreme Court has repeatedly affirmed that while the President may remove executive officers, he cannot lawfully direct them to commit acts that are unconstitutional, obstruct justice, or violate statutory mandates.
That doesn't mean the President doesn't override the DoJ, it means the President doesn't override the law.
> The constitutional structure also relies on normative independence - a separation within the executive branch that maintains rule of law.
Yes, that it relies on this but does not actually provide any mechanism by which it can effectively be assured is the fundamental design issue I am referring to being necessary to address if one wants "the President overrides the DoJ" not to be a simple fact independently of whether or not the pardon power exists and is vested in the President's discretion.
> Finally, while the pardon power is broad, it’s not the linchpin of executive authority over the DOJ.
I literally said that the pardon power is irrelevant to that, which is the exact opposite of describing it as the lynchpin.
> Removing or limiting that power wouldn’t change the fact that the DOJ’s prosecutorial discretion must still be exercised consistent with law, ethics, and constitutional constraints - not simply the President’s personal preferences.
To the extent that is true, that is only a negative constraint on prosecution applied by the courts, it can never compel a prosecution that the executive has declined. (Congress, of course, could punish the President for preventing prosecutions, via the impeachment power, but that’s hardly a substitute for real independence from the President of all or part of the prosecutorial power if that is what is desired. Or, for that matter, much of a remedy at all if more than 1/3 of the Senate is on board with the President's conduct.
The de facto absolute Presidential authority over DoJ stems from two powers:
1. The ability to dismiss the Attorney General at will (alternative: Congress)
2. The ability to pardon at will (alternative: Congress)
Remove those two Presidential powers, and the DoJ becomes much more independent.
Imho, the DoJ side of the judiciary branch is important enough to the separation of powers that this should have been done a long time ago.
The Attorney General should be elected, like most of the state AGs are. An elected AG with the DoJ underneath them would be much more independent.
A fragmented executive power, like most states have, does solve problems stemming from the unitary executive, but also increases the difficulty of ascribing responsibility for bad outcomes whose source isn't exclsuviely in one bailiwick, complicating effective democratic accountability.
You could probably make a good case that doing this for just the AG is still a good thing.
(Of course, federally, that becomes both a major Constitutional change and raises the question of how they would be elected? The same Electoral College that elects the President? A separate electoral college? Direct election unlike the President? Of course, the first problem is one with any means of making the DoJ independent of Presidential control.)