Andrew Cline/

Analysis: The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments

For decades, the department has interpreted the Constitution to err on the side of country first. Now all that has changed.

More often than not, the president can invoke some kind of executive-branch logic to defend his right to do what he wants. However implausible the argument, sweeping Article II rhetoric can be used to apply an institutional gloss to acts of even blatant personal caprice. The president may ask a foreign power to investigate his political rival—as part of his conduct of foreign relations. The president may fire lifelong civil servants for a perceived slight or inadequate personal loyalty—because the “unitary” executive power places the executive branch under his total control. The president can decline to cooperate with a Justice Department investigation into election interference or direct his Cabinet and staff not to respond to congressional subpoenas—to protect his ability to have candid communications with his advisers under executive privilege.


But in extraordinary cases, presidential action eludes all constitutional cover. These are cases in which the interests of the person and the interests of the office unequivocally diverge. The quintessential example: personal dealings that raise the specter of corruption. Asserting the president’s right to engage in private conduct that creates even the perception of self-enrichment serves the man but in obvious ways diminishes the trust, prestige, and, in the long run, power accorded to the institution. In general, such cases are properly handled by the president’s personal lawyers—not by the Justice Department, whose client is not the president but the United States of America, and not by the White House counsel, whose job is to support the presidential office and, by extension, serve the public trust.