The Trumpian Assault on American Justice

The Dangers of the Current Moment

While Trump gave his first State of the Union in a fashion clearly meant to be conventionally “presidential”, developments in the ongoing attack on the credibility of the FBI and the Mueller investigation by the White House and its and GOP enablers have moved in a very dangerous direction.  Last year right after FBI director Comey was fired, lots of commentators worried aloud about the slide towards autocratic rule that further meddling in the independence of the career officials at the Department of Justice would entail. After all, it was a major campaign pledge of Trump: wielding the Justice Department’s immense power as a political weapon. 

When on the campaign trail he often railed against the Justice Department for not prosecuting Hillary Clinton for improperly storing classified information on a private email server.  He declared that the department was “a political arm of the White House” and couldn’t be trusted to fairly uncover evidence of Clinton’s presumed guilt. His rally crowds often broke into chants of “lock her up” at the mention of Clinton’s name, and at one point he replied, “I’m starting to agree with you.”  During the second presidential debate, when he told Clinton in person that he would abuse the presidency’s powers to go after her.  “But if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation.” Clinton responded coolly to the threat. “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country,” she told the audience. “Because you’d be in jail,” he shot back.  This ignored the democratic taboo against prosecuting one’s political opponents. He reaffirmed his long-standing disdain for the presumption of innocence and due process.  

But, for most of 2017, the institutions of justice in the United States seem to have held strong against Trump’s instincts.  When Trump confronted the law enforcement apparatus of the United States he discovered that it did not work as an extension of his political power.  It didn’t stop him from trying: he urged Attorney General Jeff Sessions not to recuse himself from the Russia investigation last March, and when Sessions did step aside, Trump reportedly told aides that he needed an attorney general who could protect him from the Justice Department.  He demanded from then-FBI Director James Comey, who some believe put him in the Oval Office, “loyalty” and for Comey to publicly clear him of wrongdoing and end an inquiry into former National Security Advisor Michael Flynn; when Comey refused, Trump fired him.  He also tried to fire special counsel Robert Mueller, only to back down after White House Counsel Don McGahn threatened to resign instead of carrying out the order. 

Trump is fully aware of what he’s been doing.  “You know, the saddest thing is that because I’m the president of the United States, I am not supposed to be involved with the Justice Department,” Trump said in a radio interview in November. “I am not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things that I would love to be doing. And I’m very frustrated by it.”  The next month, he told a New York Times reporter that he has the “absolute right to do what I want to do with the Justice Department.”

And now, eight months after Comey’s dismissal, and largely because the bulk of the Republican Party has cynically traded lickspittle loyalty to Trump in return for key issues in their long-term agenda (tax cuts and judicial appointments), Trump has brought the administration to a constitutional precipice again.  And this time, I genuinely fear Trump and his supporters will take the US over that cliff.  

Observers of autocrats have frequently noted the prosaic and profound purposes of their lies, both the day-to-day untruths and the monstrous “big lies”.  The Toronto Star and The Washington Post are keeping running tallies of Trump’s lies and the end of January 2018 the Star has documented more than 1,100 and the Post more than 2,140 false or misleading claims.  Most of Trump’s lies are small, often pointless, usually uttered to burnish his own vanity. 

But among his biggest, most audacious, and most dangerous of lies are the claims that have been made by Trump about the nature of US federal law enforcement.

Trump has long tried to politicize law enforcement. He’s openly declared this himself.  He’s talked openly about the job of the attorney general as protecting him and going after his political enemies.  He says he admires Eric Holder’s protection of Barack Obama: a supposed corruption based in yet another conspiracy theory, but one that is indicative of his own understanding of the power a president should have.

Because it is clear that Trump’s big lie about the institutions of justice is the notion that federal law enforcement is already behaving as corruptly as he actually aspires for it to do.  While Trump clearly wants a law enforcement apparatus that will act corruptly on his own behalf, what he and his enablers are claiming right now is that law enforcement is behaving corruptly on behalf of his political enemies.

The short-term purpose of the lie is obviously to discredit the Russia investigation in the minds of a large portion of the public.  But eventually the use of the lie will politicized law enforcement in Trump’s own image.  While there is no doubt that US judicial institutions have problems and are not above reproach, by falsely describing them as a set of inherently corrupt institutions and complaining about them, Trump's purpose is to lower public expectations to the point of accepting their corruption.  Trump seeks not merely to destroy the current leadership and install leadership more apt to behave in the fashion the president wants; he wants to erode public confidence in the premise that a different reality ever existed.

Currently, there are two inter-related and very alarming developments in the recent full-court press to delegitimize the Mueller investigation and turn the Department of Justice into Trump’s political poodle.  

1.    FBI Deputy director McCabe’s sudden departure from the FBI seems to be the result of a Justice Department Inspector General’s probe.  The Washington Post explained that this probe is about how the FBI chose to handle those Huma Abedin emails on Anthony Weiner’s laptop in the final weeks of the 2016 campaign.  The Clinton email probe ended in July.  But an unrelated investigation into Anthony Weiner sexting with a minor led FBI agents to find a trove of Huma Abedin’s emails which agents in New York wanted to review to see if they shed new light on the Clinton emails probe. This request went to Washington and McCabe saw them sometime late in September.  That was about three weeks before Comey sent his letter to Capitol Hill that roiled the campaign during its final week and arguably turned the course of the election in Trump’s favour.  Why McCabe did nothing or if Comey knew about the emails at the beginning of October is still uncertain.  One interpretation is that it took time to go through the process of figuring out the appropriate steps to take.  Another potentially more sinister view is that McCabe was sitting on the matter, stalling or resisting reengaging the Clinton emails story because he didn’t want the news to come out because he knew it would hurt Clinton.  Or, McCabe was worried about the unfair impact on the election the re-opening of the investigation would have, just before the election.  The FBI historically did not make public announcements about its investigations for just that reason.

But on October 24th, the Wall Street Journal published its report about the alleged conflict of interest with McCabe’s wife who had earlier run for office in Virginia as a Democrat, with major financing from then Gov. Terry McAuliffe.  It was four days later that Comey then sent his letter to Congress stating the investigation was re-opened (October 28^th).

At the same time, the FBI was facing a new set of questions, this time about McCabe’s role in a stalled probe into the Clinton Foundation.  Some within the FBI were suspicious of McCabe’s motives for not more aggressively pursuing the Clinton probe.  McCabe’s defenders inside federal law enforcement have suggested he navigating a sensitive political investigation between Justice Department (DOJ) officials who thought the probe was going nowhere and FBI agents who believed they were being politically stymied.  It seems that a lot of those people were in the New York City field office, which, justly or not, was notably hostile towards Clinton.

The FBI had no reason to believe there was anything in those emails that would change the result of the original investigation. They just wanted to look. But announcing that the investigation was “reopened” was bound to land like a bombshell just before the election.  That’s exactly what happened.  And there was nothing there at all.  But given the closeness of the election, that decision may have been crucial in swinging it to Trump.

Why is all this relevant now?  Well it appears that McCabe’s conduct during October 2016 is now being investigated by the DOJ Inspector General and this investigation is the reason why McCabe has been pushed to leave prior to taking retirement in March.  FBI Director Christopher Wray in his December House Testimony deflected many questions from Congress about FBI performance in the run up to the election, and related matters, out of deference to the upcoming Inspector General’s Report.  This report will provide a lot of information about exactly what went down in 2016 (and possibly 2017) in FBI and DOJ related to the events in the news.  Some of the report, it appears, will be damning.  “Agents and lawyers expect the report by the Justice Department’s inspector general, Michael E. Horowitz, to be highly critical of some F.B.I. actions in 2016, when the bureau was investigating both Hillary Clinton’s email use and the Trump campaign’s connections to Russia,” the New York Times reported, in explaining why Wray might have moved to nudge out McCabe earlier than expected.  

The implication here being that McCabe acted, as Trump has frequently tweeted, in favour of Clinton. 

The question remains was McCabe running interference for Clinton by sitting on those emails or was he following established DOJ guidance to be highly cautious in taking actions on the eve of an election?  A third option is that he just wasn’t moving as fast as the FBI agents in New York wanted.  And it is quite possible that the Wall Street Journal piece that spurred Comey into action was the result of a leak from those same New York FBI agents.   

Whether McCabe was actually biased or just found himself in an impossible situation is not clear, and I suspect the Inspector General’s report will not necessarily clear up those ambiguities.  It will, however, be spun ruthlessly by the White House in a way that attempts to discredit the conduct of the FBI in 2016.

The wrong committed against the Democrats and Hillary Clinton at the end of October 2016 by the public actions of the FBI was egregious and quite plausibly threw the election.  Now it looks like that whole episode may be resurfaced, re-litigated and, crucially, re-purposed to help now-President Trump a second time: to claim that the FBI leadership was biased against his campaign and has been ever since, and that he is justified in demanding new, Trump-trusted, replacements.  Such replacements would, of course, be less willing to stand-up against Trump’s demands.

2.    The McCabe news follows reporting from CNN and the Washington Post that Trump was upset with Rosenstein and thinking of firing him over the “memo” currently being hawked by House Intelligence Committee Chairman Devin Nunes.  The New York Times reported that the memo specifically targets Deputy Attorney General Rod Rosenstein for approving an FBI request to the secret intelligence court to extend the monitoring of former Trump adviser Carter Page that began in the fall of 2016.  Trump has previously voiced frustration with Rosenstein over the deputy attorney general’s appointment of Robert Mueller as special counsel, and the Post writes that the president views the memo as an excuse to fire Rosenstein or ratchet up pressure on him to leave.  The Times reports that what Trump now calls “the Trump Justice Department” believed in spring 2017 that there was still probable cause to conduct surveillance against Page.  Thus to believe that there is something defective about the Mueller investigation, one has to believe not only that the Obama administration conducted inappropriate surveillance against the Trump campaign based on laundered opposition research from the Democratic National Committee, you also have to believe that the Trump administration itself is still doing it. In other words, you have to believe Rosenstein is a corrupt rogue actor simply out to get the president.

The classified memo prepared by Nunes is a critical part of this big lie. Since word of the memo surfaced weeks ago, a group of House Republicans have been pushing aggressively for its public release, arguing that it contains evidence of surveillance abuses “worse than Watergate.”  While the memo’s contents were initially shrouded in mystery, the New York Times has since reported that it concerns a request for a FISA warrant targeting Page, a foreign policy adviser to the Trump campaign—alleging that the Justice Department and FBI misled the FISA judge about the extent to which the warrant request had been based on the Steele dossier.

The House Intelligence Committee majority is planning to make the memo public. But the process leading to this point has been plagued by irregularities that call the document’s reliability into serious question. Nunes prepared the memo without any input from Democrats on the committee, and the committee’s vice chairman, Rep. Adam Schiff, has criticized it as “rife with factual inaccuracies” and “meant only to give Republican House members a distorted view of the FBI.”  The memo summarizes intelligence to which only members of the Gang of Eight have access, meaning that the vast majority of Republican House members who have viewed Nunes’s summary have not seen the underlying intelligence itself.   

Senate Intelligence Committee Chairman Richard Burr and Vice Chairman Mark Warner do have access to that intelligence—but Nunes refuses to share the memo with them. He has also withheld the document from both the FBI and the Justice Department. And while the Washington Post reports that Trump would probably give his approval to a House intelligence panel vote to make the memo public, the Justice Department has warned Nunes that release of the memo prior to departmental review would be “extraordinarily reckless.”  Even before its release knowledgeable critics are rightfully saying the memo is partisan to the extreme and likely based on decontextualized cherry picking.

The apparent goal of the memo is to undermine  Rosenstein, which could give Trump a pretext to fire him—and thus imperil Mueller’s investigation, which Rosenstein oversees.  Indeed, should Mueller’s investigation not bring criminal charges against Trump but instead recommend action to Congress, it would be Rosenstein that would have to make that report to Congress.  Removing Rosenstein or Mueller without good cause would deal a tremendous blow to the American rule of law. But it wouldn’t be shocking or surprising at this point.

What does this all add-up to?  Simply, destroying the Justice Department’s independence isn’t a distraction from Trump’s policy goals or his campaign pledges. It’s his attempt to fulfill them.