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♪ ♪ KATKO: Welcome, America, to "Balancing Act", the show that aims to tame the political circus of two-party politics.

I'm John Katko.

This week, the Department of Justice - who does it serve, and how should it be run?

In the center ring, former acting Attorney General George Terwilliger gives an inside look at its purpose, and then Carson Holloway and Ty Cobb take to the trapeze to discuss whether the presidents, past and present, have honored the independence of the DOJ or tried to influence its actions.

Plus, I'll give you my take, and Bloomberg's Skylar Woodhouse tells us what's happening next week in Washington.

But first, let's walk the tightrope.

♪ The United States Department of Justice, or DOJ, was created in 1870 to uphold the rule of law, ensure public safety, represent the interests of the government in court, and administer justice in a fair and impartial manner.

Prior to its establishment, the federal government's legal responsibilities were scattered across multiple departments, and prosecutions often carried political overtones.

The DOJ consolidated government lawyers under one roof.

The new department would fall under the executive branch and supervise U.S.

attorneys and advise the President.

But it was also designed to operate with a measure of independence.

Congress structured the DOJ to be led by a presidential appointee, the Attorney General, but staffed predominantly by career professionals largely shielded from politics.

However, that hasn't stopped some presidents from attempting to place their thumbs on the scales of justice.

For example, under Richard Nixon, the infamous Saturday Night Massacre took place when Nixon ordered the firing of the special prosecutor investigating the Watergate scandal, and top Justice Department officials resigned rather than comply.

The backlash led to reforms that limited White House interference, including the independent counsel law to investigate top officials without fear of firing.

Other reforms included strengthening freedom of information and Inspector General oversight and issuing formal DOJ-White House contact rules to try to keep politics out of prosecutions.

On the other end of the scale, however, during Bill Clinton's administration, the Justice Department was accused of blurring the lines between politics and law enforcement.

Controversies involving White House access to FBI background files and politically tinged personnel firings drew criticism from both parties.

Policies and internal regulations define what contacts are permitted between the White house and the DOJ.

Other safeguards developed over time hold that while the President may set broad law enforcement priorities, he should not direct or influence specific criminal or civil cases.

These safeguards aren't enforceable by law, so ultimately, they rely on each president's willingness to respect them.

That respect has come into question in recent years, as both parties have been accused of tipping the scales unfairly.

Under Joe Biden's administration, critics argued that the DOJ was weaponized against Donald Trump through indictments and investigations timed near an election year.

They pointed to the charges brought by Special Counsel Jack Smith and by state-level prosecutors as being politically motivated.

And today, critics of the Trump administration say the pendulum is swinging the other way, with reports that the President and his allies are pressuring the Department of Justice to open new investigations into political rivals.

For example, the mortgage fraud charges against New York Attorney General Letitia James is just one.

And the purging of senior prosecutors seen as disloyal is another.

So, what is the purpose and best practices of the United States Department of Justice?

Our first guest weighs in on that question in the center ring.

♪ ♪ Joining in the center ring is former acting Attorney General George Terwilliger, who served in the Department of Justice under four different presidents.

George, welcome to the show, let's get right into it.. What is the original intent of the Department of Justice?

TERWILLIGER: Well, in 1870, the purpose of the Department, John, was to represent the United States in court around the country and in the Supreme Court, and to function as the nation's federal prosecutor - again, all across the country, under then a few laws, now many criminal laws.

KATKO: So George, what took so long to form the Department of Justice?

Why wasn't it at the beginning of our country's founding?

TERWILLIGER: Because for the most part, outside lawyers were used since the position of the Attorney General was created in 1789.

So up until the Civil War and shortly thereafter, private lawyers would be hired because there just wasn't that much litigation involving the United States.

That seemed a bit ironic now of course, when there's constant litigation involving the United States, but it had grown enough, including under the False Claims Act, because of fraudsters trying to sell insufficient or inadequate goods to the government during the Civil War, and the False Claims Act became a very important part of the federal docket.

They needed attorneys all across the country to represent the United States in those and other cases, as well as in connection With the burgeoning civil rights during Reconstruction in the South.

KATKO: Does the Constitution or any of its amendments make any reference to the Department of Justice?

TERWILLIGER: No, no, not really.

The Department of Justice is a creature of statute created by Congress under making all necessary and proper laws, but the Attorney General, of course, existed as part of the President's original cabinet going back to 1789 and even today enjoys a prominent role as an adviser to the President on legal matters.

KATKO: So, again, I'm going to talk more about that.

What are the best practices over time between an Attorney General and the President of the United States?

TERWILLIGER: Well, when it comes to criminal cases, the Department has at least superficially been afforded a great deal of independence.

But by law, the President is in charge of both the Justice Department and the Attorney General overall, and therefore can give it directions.

Most presidents have preferred to leave, particularly since Watergate, to leave that kind of decision-making to the people at the Department.

And frankly, it gives them some political cover from what might be an unpopular decision or decisions to prosecute.

KATKO: So you mentioned the word independence.

Let's drill down on that a little bit more.

How important is that independence, and has it fluctuated over time?

TERWILLIGER: It has fluctuated over time, and, you know, I Would dare say that no president has turned its Justice Department loose to totally make their own decisions.

The Justice Department is supposed to be part of the administration and carry out the President's policies.

How they do that, what kinds of decisions they make in individual cases, though, presidents have traditionally left to the Attorney General and his or her assistants to make those decisions.

KATKO: Now, let's talk about some examples where presidents have tested or blurred the lines between the independence of the Department of Justice and the President's administration.

TERWILLIGER: You go way back to 1791, when Alexander Hamilton was Secretary of Treasury, wanted to create a national bank.

The Attorney General, Edmund Randolph, thought that would be unconstitutional, and President Washington, despite the Attorney General's written opinion, went ahead with it anyway.

Fast forward up to the time of the Civil War, and President Lincoln directed the Attorney General to suspend the writ of habeas corpus, one of our most fundamental freedoms.

Forward again to the Watergate era and President Nixon ordering a special prosecutor to be fired, and two persons holding the office of Attorney General resigning rather than carrying out that directive until a third holding the position agrees to do it.

KATKO: Should the President ever have any influence over charging decisions at the Department of Justice?

TERWILLIGER: Yes, I mean, you're asking me for my opinion.

Lawfully, the President can have influence over that, and I think sometimes he should.

Now, normally, you would expect It to be more categorical.

I want, you know, heavy enforcement of the drug laws or the immigration laws or organized crime and leave the individual decisions more to the prosecutors to make.

KATKO: So what laws exist to ensure accountability within the Department of Justice?

TERWILLIGER: There really is no law that ensures accountability.

The accountability at the end of the day, John, is political.

The Attorney General answers to the President, and the President answers to the people.

That's the ultimate check on Abuses of presidential authority, including in the operations of the Department of Justice.

KATKO: So what is a process, if any, for determining whether the authority of the Department of Justice has been misused in some way?

TERWILLIGER: Well, Congress - you as a former member of Congress certainly recall that Congress conducts regular oversight of the Department of Justice and will call the Attorney General and other presidential appointees on The carpet for their decision-making.

And that's totally appropriate, and it's consistent with what I was just saying about political accountability because those are the representatives of the people holding the President and his appointees' feet to the fire.

KATKO: Aside from the practices in the past between the President and the Department of Justice, how important is the Appearance of impropriety or the appearance, more importantly, of independence to the American people?

What priority is that for the American people, do you think?

TERWILLIGER: Well, I think in some respects, the idea of independence is a misnomer and it's overblown.

What we're really talking about is the oath that every member of the Department of Justice has An official function, the oath they take to uphold the Constitution.

And what we're really talking about in terms of independence is exercising that kind of good judgment that upholds the rule of law.

KATKO: How did John and Robert Kennedy work together, do you think?

[ Laughter ].

TERWILLIGER: Yeah, having the President's brother as the Attorney General.

And, you know, history now tells us that President Kennedy was not at all shy about telling his brother what he wanted him to do in terms of vigorously enforcing the civil rights laws, including U.S.

Marshals, then sending the Deputy Attorney General down to make sure some minority children actually got admitted to school, where the governor opposed having them there.

So that was very, very active.

I think other presidents, particularly since Watergate, have probably been less transparent about their direction to the Department of Justice, but Congress's role is to draw that transparency out.

KATKO: George Terwilliger, thank you so much for your great service to this country and very distinguished service.

For more now, let's take to the trapeze.

♪ ♪ KATKO: On the trapeze this week, we're joined by a professor of political science at the University of Nebraska, Omaha, Carson Holloway, and former federal prosecutor and former White House counsel, Ty Cobb.

Welcome, gentlemen, and let's get right into it.

Mr.

Holloway, how much independence should the Department of Justice realistically have in the executive branch?

HOLLOWAY: Thanks for having me, John, and I'm happy to answer that question.

I'll begin by saying, of course, these are my views, not those of my employer.

But for my part, I would not frame the question that way.

I don't think of the Justice Department as having a proper independence from the executive branch at the highest level because it is part of the executive branch, and the Constitution does establish a unitary executive, meaning one in which there is one person at the peak of the executive branch: the President of the United States.

This is something that's defended by Alexander Hamilton, for example, in the Federalist Papers, where he explains that the framers vested the executive power in one person for the sake of energy in the executive, making sure that the executive branch is all kind of going in one direction, so to speak.

And also for the sake of responsibility to the electorate.

If we have self-government, we need to have institutions that are answerable to the people.

They answer to the people through the elected officials.

And so I wouldn't put it in terms of independence.

There may be interferences by the President that are improper, but in general, the Department of Justice is part of the executive branch and answers to the President in many ways.

KATKO: Mr.

Cobb, your take?

COBB: Well, I think that's a pretty wooden view.

I mean, I respect that, and it's nice to be on with the Professor.

I've read some of his writings, and I agree wholeheartedly with him about New York Times v. Sullivan in a different realm, but I disagree on this, which is, you know, the Constitution and Hamilton, as well, are much more nuanced in my view with regard to the executive.

Yes, it is true that he is in charge of the executive branch, but Congress and Constitution do limit certain of his activities.

And, you know, it's the Bible in the Justice Department, the DOJ manual written under Eisenhower in 1953, that case-by-case judgments must be impartial, must be insulated from political influence.

It's imperative that the Department's investigative and prosecutorial powers be exercised free from partisan consideration.

That is the rule under which the Justice Department has operated for the last 70 years, and no longer operates, but that was the rule until recently when the President started targeting his enemies.

Yeah, certainly the President has the opportunity and the obligation, frankly, to set priorities, pursuing antitrust violations, pursuing civil rights violations, etc., etc., on the policy level, but in terms of individual cases, Presidents should have no influence at all.

KATKO: All right, Mr.

Cobb, you followed with something, you just referenced, and that was "until recently."

What are you referring to?

COBB: So now, I mean, when the President orders his Attorney General, in the wake of experienced prosecutors saying there are no cases against, and there's no evidence against Comey or Letitia James, that would justify a prosecution-when he fires those people and orders his Attorney General to prosecute them now, which was the loud capitalized word in his order to Bondi, that's way out of bounds and unprecedented in American history.

KATKO: Mr.

Holloway, two questions: First of all, what did you think of what he said about President Trump?

And second of all -- is this first time you have ever seen a President acting out that regard?

HOLLOWAY: Yeah, I think it would be helpful to clarify the areas of agreement and disagreement between me and Ty.

I agree, of course, and that's what I was saying, is that the President has the right to direct the general priorities and the operations of the Department of Justice.

That's why we call-and I don't think this is controversial-the top-level people, like the top three or four levels of the department, political appointees.

They are there to make sure that the administration's priorities are carried out.

And I agree with Ty that it can be improper for the President, and it would be kind of on its face questionable for the President to get involved in specific prosecutorial decisions, whether to bring a case or to decline a case.

I think we might differ in this, though, that I don't think that you can exclude in principle, in principle, that the President might get involved in directing something, because we're all fallible human beings, including the Department of Justice.

It's possible to conceive situations where they're either being overly aggressive or insufficiently aggressive, and the President might have to get involved and give direction.

I don't say that to defend any particular thing that's been done, but to just maintain the principle that the President is the ultimate head of the executive branch.

KATKO: Sorry, go ahead.

COBB: No, I would agree.

I think that was well stated, and it's not substantially different from my view, which is, the President has policy prerogatives that he's free to state and that his Attorney General, you know, should pursue because of his role, because of the President's role in the executive branch, as I said.

And saying antitrust, civil rights, terrorism, of course, 25% of the FBI is now working on immigration cases, having been taken off terrorism cases, and off major crimes cases, off money laundering cases.

So we're not much safer, given the prerogatives of this President, and his interference in individual prosecutions is well settled.

Keep in mind that, you know, public servants, including Attorney Generals, have the opportunity when asked to do something dishonorable, to resign.

Barr threatened to resign, and ultimately did resign because of the President's fractious desire to pursue the frivolous claim that the 2020 election was stolen.

His subsequent replacement threatened to resign when Trump tried to impose a new Attorney General on the country to pursue those claims.

Elliot Richardson and Bill Ruckelshaus resigned when Nixon ordered them to fire Archibald Cox.

That's the honorable thing to do if you're asked to act dishonorably.

Bondi chose merely to pledge her fealty and do what she was told.

KATKO: Well, Mr.

Holloway, he seems to be centering a lot on this administration, but I take it from an executive oversight standpoint.

There have been times in the past where presidents have crossed the line, he mentioned , Nixoncan you think of others that have?

HOLLOWAY: Well, I mean, there are other examples of presidents, I think, interfering with criminal prosecutions or criminal investigations, where it was done more subtly.

I think what President Trump has done is very direct and very open.

I think he's -- whatever else he's trying to do, he's asserting his right to control the operations of the executive branch down to ground level.

I think that's why he says in interviews sometimes, "I could order this if I wanted to, I'm not going to."

Sometimes he has ordered things, as Ty said.

I mean, even in recent times, I think that when there was an open investigation of Hillary Clinton, President Obama was in an interview and he ventured the opinion that "I don't think Hillary did anything wrong."

I mean, that was an indirect way of maybe trying to move the Department of Justice, or it could appear that way.

And I think, as recently as the previous administration, there was a New York Times article about how unhappy President Biden was that Merrick Garland was not being more aggressive in his pursuit of President Trump.

So somebody leaked that stuff to get the news to Merrick Garland, it seems to me.

So things are maybe unprecedented in how open they are, but there may have been instances in the past that we could talk about, and it's probably a constant temptation, honestly.

As I said before, we live in a fallen world.

Everybody's fallible; presidents will have temptations to do things that they shouldn't do, and it's probably happened a great deal that we don't know about.

KATKO: Mr.

Cobb, we've got about a minute left, and I want to ask you both the same question if I can.

How important is the appearance of propriety for the American people's faith in the justice system?

COBB: I think it's very important.

I think it'll take a generation or more to correct what's happened here.

Keep in mind that under Obama, Hillary was investigated, she was a Democrat.

Under Biden, his son was investigated, prosecuted, and convicted.

That'll never happen here.

If you're the head of, you know, Homeland Security for Trump, if you're Tom Homan, you can take $50,000 in a bag, cash in a bag, and get away with it.

That definitely undermines the public's confidence.

KATKO: Mr.

Holloway, you've got the last word here.

HOLLOWAY: I do agree that it's going to take a long time to restore public confidence across the board in the operations of the Department of Justice and in the government.

And it's not just a question of particular things, but the polarization of the country.

The country's divided on what the right way to go is, and so it's hard for people to trust the institutions in this kind of environment.

KATKO: So, Mr.

Holloway, Mr.

Cobb, thank you so much for your insight.

Now it's time for my take.

♪ ♪ KATKO: As a federal prosecutor for nearly two decades, I pursued everything from drug cartels to corrupt public officials, always with the solemn duty of ensuring that justice was done free from politics.

For years, most presidential administrations honored that same principle, but over the past few administrations, something shifted.

At times, the Department of Justice has been weaponized for political ends, and it's deeply troubling to witness.

When that happens, Americans lose faith, not only in our prosecutors but in our democracy itself.

Both parties bear responsibility, so there's no need for finger-pointing.

What matters now is that the American people demand leaders respect the rule of law above all else and vote accordingly.

The integrity of our justice system has always been a cornerstone of our democracy.

Let's keep it that way, and that's my take.

♪ ♪ KATKO: With us is Bloomberg's Skylar Woodhouse, for a look at what's happening next week in Washington.

And Skylar, next week begins the whole narrative about the midterm election.

So what do you see as the big issues now that the elections are over?

WOODHOUSE: Yeah, with these elections over, it's sort of a welcome to midterms.

Midterms are here, 2026 is just around the corner.

And Democrats and Republicans are now sort of going to the table to strategize how they can secure power in Washington, especially at a time where in Congress, it's narrow - it can go either way for Democrats or Republicans.

Republicans are trying to continue to have power, and Democrats are trying to regain power.

So, you know, they're going to have to find a way to message to voters how they plan to tackle the economy.

For voters, economy, inflation, health care, crime, those are all issues that are really key for voters right now.

It's also just sort of those quality-of-life issues.

And so for candidates heading into midterms, they're going to have to figure out how they are going to message to voters.

It also comes at a time where the government is shut down.

It's one of the longest shutdowns that the United States has seen, and it's at the holiday season approaching.

Folks are missing paychecks, so it's definitely creating a lot of anxiety around the country on sort of how people are, you know, with SNAP benefits, how people are going to get their next meal, how they're going to pay rent.

So there's a lot of issues happening right now in the country.

And for Democrats and Republicans, they are going to have to try and navigate how they are going to really win those votes at a time where, The two parties are really sort of at odds with what is going on in the country right now.

And this is going to just be a really interesting time to see how top party leaders are going to craft that message to resonate with voters.

KATKO: You know, Skylar, it seems like the more things change, the more they remain the same, and that the economy still seems like it's going to be the top issue coming in the next year.

Do you think that's right?

WOODHOUSE: Oh, absolutely, and this is at a time where prices are still high.

You can look at the data, and you can see, you know, maybe things are falling slightly or things still are looking elevated.

But day-to-day for Americans, they are still feeling, you know, higher prices, whether that's at the grocery store.

It's just a very expensive time we are living in right now, with health costs through the roof, and especially for folks in the workforce.

Wages sort of aren't matching the higher prices, and there's higher energy prices.

So the country, the world, is just at a time where things are just very expensive.

So the economy is absolutely going to be top of mind for voters heading into the 2026 midterms.

KATKO: Skylar Woodhouse and Bloomberg News, thanks so much.

That's all for this week, folks.

To send in your comments for the show, or see "Balancing Act" extras and exclusives, follow us on social media or go to BalancingWithJohnKatko.com.

Thank you for joining us, and remember, in the circus that is politics, there's always a "Balancing Act".

I'm John Katko.

We'll see you next time, America.

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