Supreme Court: Scalia paved the way for Trump’s assault on rule of law - Vox

Ian Millhiser attacks the Antonin Scalia/Federalist Society `unitary executive' theory which Attorney General Barr embraces strongly.  Barr argues bluntly (in his Federalist Society speech in November) that he necessarily works under the "supervision" of the President.
Millhiser cites my Fordham colleauge Jed Shugerman's recent article Professionals, Politicos, and Crony Attorneys General: A Historical Sketch of the U.S. Attorney General as a Case for Structural
Independence, 87 Fordham L. Rev. 1965 (2019). Shugerman points out that prosecution was historically a private function.  The Department of Justice was a post civil war creation.  Even today federal judges exercise executive functions such as appointing interim U.S. attorneys.

Judges like the recently appointed D.C. Circuit Court of Appeals member Neomi Rao would strip  Congress power to oversee executive branch law breaking.  Only explicit invocation of the impeachment power would provide Congress with such authority she argued in the Trump v. Mazars case to be argued March 31 in the Supreme Court. Trump has embraced that view which leaves him with untrammeled power.  A Senate majority has refused to remove or even criticize him, and Trump's Attorney General embraces the most full-throated version of the "unitary executive" theory.

Separation of powers - the high school civics phrase - is a misleading bit of common parlance.  Overlapping powers is more apt.  The legislative power is shared by a President who proposes legislation and has veto power; the Commander in Chief of the Army is without authority to make war unless directed to do so by the Congress.  Determination of the funds needed to carry out the functions of government is in Congress hands - and must be initiated in the lower chamber.  These are executive functions by any measure.
Finally the executive is bound to "faithfully execute" the laws - the duty of an agent, not a principal. - GWC
Supreme Court: Scalia paved the way for Trump’s assault on rule of law - Vox
by Ian Millhiser
***The Justice Department’s swift compliance with Trump’s wishes was widely condemned by DOJ alumni, who spoke of why it is important that the nation’s prosecutorial arm retain a degree of independence from its political leader. As Joyce White Vance, a former United States attorney, wrote in Time, if Trump “can corrupt the criminal justice system for the benefit of his friends, there is no reason he cannot also use it to retaliate against those he views as enemies.”

In this sense, the Justice Department is fundamentally different from other federal agencies. While those agencies can wield tremendous power over federal policy, DOJ is tasked with the awesome power to prosecute crimes — and with it, the power to ruin the lives of a president’s political enemies.

For Barr, however, the idea that the Justice Department would be subservient to the president isn’t simply acceptable; it is a constitutional necessity. (Although Barr has also claimed he would not bring a criminal investigation solely because the president wished to investigate a “political opponent.”)

Last November, Barr spoke to the conservative Federalist Society’s annual lawyers convention. His speech focused on the proper role of the presidency, and on the theory of the “unitary executive.” As Barr described that theory, which he enthusiastically supports, every power exercised by the executive branch “must be exercised under the President’s supervision.”***