2009 Memorandum Questions White House Interference with The Justice Department Investigations

By Nethani Palmani | Feb 24, 2017 09:26 AM EST

The rest of the 2009 memorandum very briefly addresses communications arising out of a range of special circumstance, which includes national security matters, White House requests for legal advice, communications involving the Solicitor General's office, presidential pardon matters, personnel decisions concerning civil service positions, and finally communications not relating to pending investigations. (Photo : Spencer Platt / Getty Images)

New York Daily News reveals that Stephen Miller called the U.S. Attorney for the Eastern District of New York shortly after President Trump signed his recent immigration executive order, instructing Attorney Robert Capers on how to defend the President's order in court based on a 2009 memorandum. The report calls it "the biggest question Jeff Sessions has to answer".

According to the New York Daily News, the memorandum Miller refers to was issued by then-Attorney General Holder after much discussion with White House counsel. Although not much details were released on the alleged Miller-Capers communication, the memo primarily aimed to establish the Justice Department's policy-setting guidelines, in restricting communications between the Department and the White House, to ensure that the Department's legal judgments are "impartial and insulated from political influence" and "free from partisan consideration" while making prosecutorial and investigatory decisions.

However, the idea that the Justice Department should be free from political interference is not listed in any statute or constitutional provision. Instead, it evolved through a series of internal policy memorandums and letters issued by the Justice Department officials from both parties, says Lawfare.

Following the memorandum, Jeff Sessions, will now have to decide whether or not to follow his predecessors by not allowing political influence to drive the Department of Justice's decision-making. As attorney general, he could choose to abandon or overhaul those policies, a concern that was first heightened by Trump's suggestions during the presidency campaign, indicating at that time that Sessions could possibly pursue politically-motivated prosecutorial decisions.

If it's true that Miller reached out to Capers not for purposes of a general policy conversation but to instruct him on how to proceed with a case instead, that's pretty much the definition of an illegitimate communication. Nonethless, it's also a suggestion that it may be on Sessions to publicly and repeatedly as needed, to look into the memorandum and reaffirm his Department's continuing commitment to remain "impartial and insulated from political influence."

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