What is the legal standard which would make a request to investigate "improper"?

Question

On May 3rd, 2019, Kamala Harris tweeted:

I'm calling on the DOJ Inspector General to investigate whether the White House improperly ordered or pressured Barr to investigate the president's perceived enemies.

If there is a discussion about whether the President's "perceived enemies" acted outside of the bounds of the law, and subsequently, AG considers investigating them, what could make such a discussion "improper"?

Surely simply being political "enemies" (I assume she meant "opponents") of the President, in itself, is not enough to make any of their actions unrestricted by laws.

Is there a legal standard for what an IG would have to discover to make such a discussion "improper"?

Edit On, May 19th, 2019, Kamala Harris tweeted regarding this issue again:

The president all but confirmed today that he improperly asked the DOJ to prosecute John Kerry.

So, presumably the President has not yet confirmed it. But I still can't understand the word "improper" in this context. Is that the same as "illegal"? "Unethical"? "Not in accordance with the proper procedure"? What type of determination is DOJ Inspector General expected to make in response to her question?

Answer 1

It is unlikely that there is a generic legal standard for being improper, or wrongful, instead, impropriety would be a function of the particular context. For an investigation by the Dept. of Justice, it would mean exceeding legal authority or being contrary to law. 28 USC Part II gives great detail on what that means. The Attorney General is at the top of the hierarchy within DoJ, but the Director of the FBI also has statutory authority to investigate certain (allegations of) violation of federal law. You can limit the search somewhat by asking what the AG is allowed to do, which is spelled out in 28 USC Ch. 31. 28 USC 509 is a statutory version of "the buck stops here" (with a few exceptions, all functions of DoJ are vested in the AG). The Justice Manual, which is based on 28 CFR Ch. I gives all of the details. An "improper investigation" would be one lacking legal authority, where authority has to go beyond saying "the boss told me to". An investigation can't just be a matter of satisfying curiosity, there has to be a connection to a "legally wrongful act", and specifically federal law, so either a criminal act or a civil wrong. This section of the manual covers attorney authority regarding criminal matters, and JM 9-2.010 describes investigative authority:

authorized to request the appropriate federal investigative agency to investigate alleged or suspected violations of federal law.

For instance, it would be acting without authority for the DoJ to investigate unpaid California parking tickets by Nancy Pelosi, because there is no violation of federal law, but it might be with authority (thus, proper) to investigate whether Nancy Pelosi threatened a congressional investigation of a San Francisco police officer, if he didn't tear up her parking ticket (I assume there is a federal law against such behavior).

In the context of the tweet quoted in the OP, it is even less clear what it means to be "improper", since there seems to be no allegation that DoJ carried out an improper investigation. 28 USC 511 authorizes and requires that

The Attorney General shall give his advice and opinion on questions of law when required by the President

There is no "presidential manual" saying what the function of POTUS is: you have to get that from the Constitution (Article II). This includes (§3) that

he shall take care that the laws be faithfully executed

POTUS can consult with the AG to determine if an investigation is a faithful execution of the laws. In the case of a parking ticket investigation, POTUS ordering the AG to conduct an investigate, "the law be damned", would be an improper order because there is no legal authority for the investigation. POTUS inquiring or requesting is proper (the point of having an attorney general is to advise POTUS on the law: it is not "improper" if POTUS doesn't immediately know the law).

Answer 2

So the backstory of this, is that John Kerry has made statements to effect that could be interpreted as violating the Logan Act (the specific accusation is that he had contacted Iranian Government officials with respect to attempting to persuade them into being patient with the United States until Trump is out of office.). As Kerry was not a member of the United States Government at the time he made this discussion, it may count as a U.S. Citizen making unauthorized negotiontions with a foreign power, which is a violation of the Logan Act.

In order to prove these accusations were true, the actual conversation between Trump and Barr needs to be shown to have occurred (Trump has tweeted out policy decisions without discussing the matters with department heads before) and that the conversation had been largely discussing the matter in such a way that it was clear that the charges were... ahem... trumped up... ahem, in order to facilitate a hit job AND Barr was aware of that fact and still looked into the case.

As this request was made on the basis of remarks Kerry made a few months ago, and Trump specified a legitimate law and a potential admission of violation of the law, there doesn't seem to be a lot to go on to support this as an improper investigation. The fact that Donald Trump might be smiling about the though of Kerry being arrested while tweeting about a call for investigation.

If this were the case, should we not then investigate Senator Harris for improperly requesting the DOJ to investigate a perceived political enemy. After all, she is running for the Nomination to run against Trump for President, where Kerry is not (yet).