Tom McCarthy
For some, the president’s efforts to undermine the justice department and the Mueller investigation represent a threat to democracy.
Ask people with deep knowledge of the US justice department about the damage Donald Trump might be doing to the country, and the conversation quickly flips back to Watergate.
Following Richard Nixon’s failed attempt to pull the plug on a special prosecutor who turned out to be on to something, the need for investigators to work free from White House interference was recognized by the public and reinforced by elected officials.
But now Trump is president, the public can seem apathetic or amnesiac and the norms governing justice department independence are being tested. Severely.
In interviews, two former assistant attorneys general, law professors and analysts from across the political spectrum used recurring words to describe Trump’s assault on justice: “dangerous”, “alarming”, “high-stakes”.
Some analysts warn that national security has also been endangered, as Trump has undermined public trust in the Federal Bureau of Investigation (FBI) and intelligence agencies whose work is often conducted in secret and who therefore depend uniquely on such trust to function.
The question is whether Trump’s snips and snaps at the norms of justice department independence represent some greater dislocation: a constitutional crisis of some kind or even an erosion of the rule of law in America, as some commentators have posited.
In recent weeks, Trump has escalated his war on his perceived foes in the Department of Justice (DoJ), which hosts the office of special counsel Robert Mueller, who is investigating alleged collusion between Moscow and Trump campaign officials.
That investigation, Trump has informed his Twitter followers, is the work of a “criminal deep state” engaged in a “WITCH HUNT” originally engineered by none other than Barack Obama.
If the Trump-supporting public is bothered by that kind of freewheeling conspiracy talk, there’s little sign of it. The president’s average approval rating is hovering close to 42%, pretty good for him. But others are deeply bothered by Trump’s seemingly nonstop provocations directed at the FBI, the attorney general, the intelligence apparatus and other DoJ agencies.
On Thursday, Trump casually granted a pardon to the race-baitingconservative commentator Dinesh D’Souza, who pleaded guilty in 2014 to campaign finance charges. The pardon was taken as a potential signal to former associates not to “flip” and cooperate with federal prosecutors – because even if they are convicted, a pardon may be waiting.
In an interview aboard Air Force One, the president mentioned he was considering pardoning other boldface names with “unfair” convictions.
“We’ve never had a president attack the intelligence and law enforcement agencies that work for him in this way,” Jack Goldsmith, a Harvard law professor and former assistant attorney general under George W Bush, said in an email. “He’s attacking them in order to discredit the Mueller investigation. But the baleful impact on those agencies’ morale and on public trust in them unfortunately extends far beyond that investigation.”
While whispers of a “constitutional crisis” are in the air, many mainstream analyses reject that idea, pointing out among other things that the Mueller investigation continues full steam ahead, no matter how much Trump might whine about it. The bad news is that it doesn’t take a constitutional crisis to constitute a national emergency, said Eric Posner, a University of Chicago professor specializing in constitutional law.
“I think the problem with thinking about this in terms of crisis is that we should be concerned about what Trump is doing whether or not there ever is a crisis,” Posner said. “It’s perfectly possible, for example, that Trump could undermine Mueller’s investigation without causing a constitutional crisis.
You could slide into an authoritarian regime without a real crisis ever taking placeEric Posner, University of Chicago
“I think what people are worried about, when you look at other countries that have slid into authoritarianism, what has happened is that the leaders of those countries have proceeded incrementally, and so when he does some things initially that people didn’t resist, that enhances his power. Once he has more power he can do more things, take more action.
“And you could slide into an authoritarian regime without a real crisis ever taking place, and I think that’s what people should be focusing on.”
‘Things subtly changing’
Shortly after Trump’s election, Amy Siskind, a former Wall Street executive, started a website called The Weekly List, seeking to catalogue news stories documenting “eroding norms under the current regime”.
The site, which Siskind said gets up to a million visitors a week and which this year produced a book blurbed by current Trump target Samantha Bee, bears this tagline: “Experts in authoritarianism advise to keep a list of things subtly changing around you, so you’ll remember.”
“At my book events, again and again, people tell me ‘you’re keeping me sane’,” Siskind said. “There’s such an effort at gaslighting, that this is not happening. Then at the end of the week people are able to sit down and read all the things that happened.”
Two recent Trump provocations have proven particularly incendiary. First, he cooperated with Republican congressman Devin Nunes and others in a campaign that led to the disclosure of the identity of an FBI informant. Then, Trump ordered the justice department to investigate its own investigation – of him.
“I hereby demand,” Trump tweeted, “that the Department of Justice look into whether or not the FBI/DoJ infiltrated or surveilled the Trump Campaign for Political Purposes – and if any such demands or requests were made by people within the Obama Administration!”
David Kris, founder of Culper Partners consulting firm and a former assistant attorney general under Obama, warned that Trump’s continued assault on norms of justice department independence rose to the level of a threat to the rule of law.
“None of what we’re seeing in my view is at all normal and a lot of it is very dangerous,” said Kris.
“The norm of apolitical law enforcement, and the norm of intelligence activity under law, including honest bipartisan congressional oversight, as well as basic norms like conflict of interest and the White House staying out of particular investigations – all are essential elements of the even more fundamental value of the rule of law,” Kris said. “Which is itself essential to any modern functioning democracy. So the stakes are very high.”
Goldsmith, who has diagnosed and debunked ‘The Cycles of Panicked Reactions To Trump’, said that “there are bad things going on in our country” but that the infrastructure of justice was holding up so far.
“Despite Trump’s onslaught, his political appointees, all of whom he could fire, have continued to support the Mueller investigation fully and the investigation carries on to Trump’s intense displeasure,” Goldsmith wrote. “That is an amazing testament to justice department’s independence.
Trump has certainly violated norms, but whether they erode will depend on what happens after Trump leaves
“As for norms eroding, Trump has certainly violated norms, but whether they erode will depend on what happens after Trump leaves.”
The question of the elasticity of norms – will they bounce back or are they forever dented? – is one that occupies Kris and others.
“I think the answer depends a lot on what happens next,” Kris said. “I think we can count on President Trump to keep pushing as hard and as long as he can to do what he believes is in his self-interest regardless of these norms. And if in hindsight it is perceived that he ended badly in part because of that, then others will be deterred from using the same tactics in the future and we may even see a strengthening of some of these norms.
“This is what happened after President Nixon’s misconduct in Watergate, the rule of law and independent norms were strengthened.
“On the other hand, if Trump continues to profit, and is perceived in hindsight as having benefited from these quite radical norm violations, then we can expect future holders of the highest office of the land to engage in the sincerest form of flattery available.
“It depends, in short, on how this comes out. We’re engaged right now in a very high-stakes experiment.”
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