New “openness”
However, the problem with prosecutorial independence is that it is not codified in US law.
Rather, it is a norm that has evolved over more than a century, dating back to the earliest days of the Department of Justice.
Although the role of attorney general dates back to 1789, the Department of Justice itself is a more recent creation. It was founded in 1870 during the Reconstruction period after the Civil War.
This era was characterized by a growing rejection of political patronage, a system of awarding favors and jobs to political allies.
Reformers argued that consolidating law enforcement officers into one department would be less susceptible to political influence, rather than spreading them across various government agencies.
But that premise was tested over the next few decades, particularly in the early 1970s under then-President Richard Nixon.
Nixon made the scandal seem like a threat of prosecution against his political opponents, while dropping lawsuits that harmed his allies.
In one case, he allegedly ordered the Justice Department to drop an antitrust lawsuit against International Telephone and Telegraph (ITT) in exchange for funding for the Republican National Convention.
Key Justice Department officials were also involved in the Watergate scandal, which involved an attempted break-in to Democratic Party headquarters.
But Sklansky, the Stanford law professor, said President Nixon tended to operate through back channels. He avoided publicly calling for prosecution of his rivals.
“He believed that if he publicly asked for it, he would be humiliated not only by Democrats but also by Republicans,” Sklansky said. “And that was definitely true at the time.”
But Sklanski believes the second Trump administration has given up such discretion in favor of a public display of power over the Justice Department.
“President Trump’s openness to using the Justice Department to go after his enemies is completely new,” he said.
