The Fifth Branch of Government?

The editors of the Washington Post concur with President-Elect Trump’s tentative decision not to continue the Justice Department investigations of Hillary Clinton:

The nation ought to be relieved that President-elect Donald Trump has decided not to press his campaign pledge to criminally investigate rival Hillary Clinton for her handling of email while secretary of state and for the activities of the Clinton Foundation. A drawn-out probe, fueled by Mr. Trump from the White House, would invariably become a political circus, take on the overtones of vendetta and deepen the wounds of the election.

but they’re on shakier ground here:

The law enforcement system and the U.S. attorneys who investigate and prosecute federal crimes are supposed to be independent, free from interference by the White House or anyone else.

Here’s what the U. S. Constitution has to say on the subject:

The executive power shall be vested in a President of the United States of America.

That’s it. No specific executive branch officers are named in the Constitution; they serve at the pleasure of the president.

The Department of Justice characterizes the authority of the U. S. attorneys like this:

In the exercise of their prosecutorial discretion, United States Attorneys construe and implement the policy of the Department of Justice. Their professional abilities and the need for their impartiality in administering justice directly affect the public’s perception of federal law enforcement.

In the Act of August 2, 1861 (Ch. 37, 12 Stat. 185) the Attorney General gained supervisory authority over U. S. attorneys. Their offices were created at the same time as that of Attorney General was. The president has plenary power over them.

There’s nothing there about independence from control by the Attorney General or the president. We have an independent judiciary. We do not have a law enforcement branch of government independent of the executive any more than Chicago’s police department is free of mayoral control. Any more than generals in the Army are independent of presidential control; any more than the diplomats in the State Department are independent of executive control; any more than the people who work for the Treasury Department are.

U. S. attorneys are employees of the Department of Justice. Like other employees of the DoJ, they, too, serve at the pleasure of the president except as regulated by the Civil Service Act. While not interfering with their work may be a custom (I see little evidence even of a custom), the president may fire them, direct them to act, or direct them to cease action. If there are laws restricting the president’s control of executive branch departments, they are likely unconstitutional and could readily be challenged in the courts.

Doing so might be politically imprudent but it is well within the power of the presidency.