The GOP’s war on the Department of Justice and the rule of law

When President Trump publicly demanded that the Justice Department open an investigation into the F.B.I.’s scrutiny of his campaign contacts with Russia, he crossed over a well-established bright line norm of constraint on executive power: The White House does not make decisions about individual law enforcement investigations. The independence of the Department of Justice is to be respected and preserved.

This is especially true when the president himself is the subject of a criminal investigation, or he would abuse the Department of Justice and use it as a weapon against his political opponents. This is what authoritarian despots do in a dictatorship or a banana republic.

This is precisely where the authoritarian Donald Trump and his Republican enablers in Congress are taking this country. They are engaged in the destruction of our long-cherished democratic institutions and norms, and the rule of law.

Charlie Savage writes at the New York Times, By Demanding an Investigation, Trump Challenged a Constraint on His Power:

“It’s an incredible historical moment,” said Rebecca Roiphe, a professor at New York Law School who helped write a coming scholarly article on the limits of presidential control over the Justice Department. Mr. Trump’s move, she said, “is the culmination of a lot of moments in which he has chipped away at prosecutorial independence, but this is a direct assault.”

Almost since he took office, Mr. Trump has battered the Justice Department’s independence indirectly — lamenting its failure to reopen a criminal investigation of Hillary Clinton that found no wrongdoing, and openly complaining that Attorney General Jeff Sessions recused himself from the Russia inquiry. But he had also acknowledged that as president, “I am not supposed to be involved with the Justice Department,” as he told a radio interviewer with frustration last fall.

As part of that pattern, he has also denied the account by James B. Comey, the F.B.I. director he abruptly fired, that the president privately urged him to drop an investigation into Michael T. Flynn, Mr. Trump’s first national security adviser.

But Mr. Trump has also been flirting with going further, as he hinted late last year when he claimed in a New York Times interview that “I have an absolute right to do what I want to with the Justice Department.” And now, by unabashedly ordering the department to open a particular investigation, Mr. Trump has ratcheted up his willingness to impose direct political control over the work of law enforcement officials.

Mr. Trump’s demand was part of the latest cycle in the campaign by his allies in Congress and conservative news media outlets to discredit the special counsel investigation into whether his campaign conspired with Russia in its interference in the 2016 election and whether he committed obstruction of justice.

One of Mr. Trump’s most stalwart defenders, Representative Devin Nunes, the California Republican who is chairman of the House Intelligence Committee, has been using his oversight powers to investigate the F.B.I.’s investigation, portraying several early steps in 2016 as scandalous. Most recently, with backing from Speaker Paul D. Ryan, Mr. Nunes has been trying to force the Justice Department to identify a confidential source who assisted the F.B.I.

As a result of that battle, the existence of the source has shaken into public view. The informant, Stefan Halper, an American academic who has taught in Britain, approached several of the members of the Trump campaign who had been in contact with suspected Russian agents and tried to find out what they knew about Russian hackers’ theft of Democratic emails. Mr. Trump’s allies have [falsely] portrayed this as the F.B.I. infiltrating his campaign with a spy.

On Sunday, Mr. Trump wrote on Twitter: “I hereby demand, and will do so officially tomorrow, 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!”

In response, the deputy attorney general, Rod J. Rosenstein, referred the matter to the department’s independent inspector general, Michael E. Horowitz, and issued a statement clearly intended to mollify Mr. Trump: “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action.”

Rosenstein is overseeing the Mueller Russia probe and knows full well that there was no infiltration of the Trump campaign with an FBI spy as Trump and his allies assert. By referring this bogus conspiracy theory to the inspector general, who has jurisdiction over any claims of misconduct by the FBI, Rosenstein buys some time for the Mueller investigation knowing in advance what the inspector general will find – nothing.

But what occurred on Monday crossed another well-established bright line norm of the Department of Justice: it does not discuss nor does it share information obtained in the course of an open criminal investigation (in particular with a subject of that criminal investigation). See, DOJ Rules, Section 1-7.000 – Confidentiality and Media Contacts Policy.

Deputy AG Rosenstein and FBI Director Christopher Wray faced a moral test: defend the norms of the Department of Justice, or allow President Trump to take a wrecking ball to those norms and obtain a look at the prosecutor’s evidence against him before he has even been charged.

In my opinion, Rosenstein and Wray failed that moral test. They should have threatened to resign and force Trump’s hand by precipitating a “Saturday night massacre” scenario. Instead, they caved in to his abusive demands.

By establishing a precedent to chip away at the norms of the DOJ, as Rosenstein has been doing, norms are no longer norms. By acceding to Trump’s abuse of power, they have only encouraged him to be even more abusive in his frontal assault on the DOJ and the rule of law. Republican Leaders Will Be Allowed to See Some Information on Russia Investigation:

The White House brokered an agreement on Monday with intelligence and law enforcement officials that will allow Republican congressional leaders to view some of the most highly classified information related to the Russia investigation, administration officials said.

For months, a small group of lawmakers close to Mr. Trump — accessories to his conspiracy to obstruct justice — have been in a pitched fight with the Justice Department over access to some of its most delicate case files, including documents detailing the scope of the Russia investigation by Robert S. Mueller III, the special counsel.

They have trained their focus most recently on access to documents and information related to a secret informant used by F.B.I. agents to gather information from Trump associates who were overseas during the 2016 presidential campaign. Representative Devin Nunes, Republican of California and the House Intelligence Committee chairman, has threatened to hold Rod J. Rosenstein, the deputy attorney general who is overseeing the Russia inquiry, in contempt of Congress or to try to impeach him if he does not hand over the material.

Until Monday, intelligence and law enforcement officials had strenuously resisted both demands, saying that the information was highly sensitive and that it was not appropriate to turn over the unredacted material to Congress, where they fear it could potentially become public or be used to undermine Mr. Mueller’s inquiry. They raised some of their concerns in a letter and then in a face-to-face meeting two weeks ago with Mr. Nunes.

It was not clear after Monday’s meeting how much of that information will now be shared with lawmakers and in what form, or who it will be shared with and in what venue. Democrats have typically been given the same access as their Republican counterparts to delicate files related to the case, but officials on Capitol Hill said they had been given few firm details on the apparent agreement.

White House officials said they expect the disclosure to happen quickly, most likely before the end of the week.

The agreement was made during a White House meeting on Monday afternoon that included Mr. Trump; Mr. Rosenstein; Christopher A. Wray, the director of the F.B.I.; Dan Coats, the director of national intelligence; and John F. Kelly, the White House chief of staff.

* * *

Republican allies of Mr. Trump on Capitol Hill have accused Mr. Rosenstein of obstructing their efforts at legitimate (sic) congressional oversight. Allies of Mr. Nunes sent a letter to Mr. Trump asking him to intervene to force the deputy attorney general to turn over all documents requested by Congress.

One of those allies, Representative Mark Meadows, Chairman of the GOP House Freedom Caucus, applauded the outcome on Monday, lavishing praise on Mr. Trump for interceding on behalf of lawmakers.

“Their attempt to circumvent this responsibility will not go unnoticed,” he said, referring to Justice Department officials.

* * *

Democrats have said the repeated confrontations are naked attempts by Republicans to sully the department’s reputation, to expose key details of its investigation and, ultimately, to provide cover to Mr. Trump.

They immediately raised questions on Monday evening about the White House’s motives, with Senator Chuck Schumer, the Democratic leader, calling the plan “highly irregular and inappropriate” and others warning that Justice Department and intelligence officials might have capitulated to Mr. Trump. Several Democratic congressional officials said they were troubled by Mr. Kelly’s potential role, in particular.

“It’s unclear from the statement whether the chief of staff is going to participate in this meeting or is just going to arrange this meeting,” said Representative Adam B. Schiff of California, the top Democrat on the House Intelligence Committee, who has received the same briefings as Mr. Nunes. “The White House should have no role in accessing investigative materials.”

Justice Department officials have argued that disclosure of the information sought by the lawmakers could have dire consequences.

“Disclosure of responsive information to such requests can risk severe consequences, including potential loss of human lives, damage to relationships with valued international partners, compromise of ongoing criminal investigations, and interference with intelligence activities,” Stephen E. Boyd, an assistant attorney general, wrote in a letter to Mr. Nunes.

As Eugene Robinson says, “Stop waiting for the constitutional crisis that President Trump is sure to provoke. The constitutional crisis is here“:

Trump’s power play is a gross misuse of his presidential authority and a dangerous departure from long-standing norms. Strongmen such as Russia’s Vladimir Putin use their justice systems to punish enemies and deflect attention from their own crimes. Presidents of the United States do not — or did not, until Sunday’s tweet:

“I hereby demand, and will do so officially tomorrow, 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!”

Rather than push back and defend the rule of law, Justice tried to mollify the president by at least appearing to give him what he wants. The Republican leadership in Congress has been silent as a mouse. This is how uncrossable lines are crossed.

The pretext Trump seized on is the revelation that FBI source Stefan A. Halper made contact with three Trump campaign associates before the election as part of the FBI’s initial investigation into Russian meddling.

With the full-throated backing of right-wing media, Trump has described this person as a “spy” who was “implanted, for political purposes, into my campaign for president.” This claim is completely unsupported by the facts as we know them. Trump wants you to believe a lie.

The informant was not embedded or implanted or otherwise inserted into the campaign. He was asked to contact several campaign figures whose names had already surfaced in the FBI’s counterintelligence probe. It would have been an appalling dereliction of duty not to take a look at Trump advisers with Russia ties, such as Carter Page and George Papadopoulos, when the outlines of a Russian campaign to influence the election were emerging.

Trump claims this is the nation’s “all time biggest political scandal” because, he alleges, Justice Department officials and the FBI used a “spy” to try to “frame” him and his campaign, in an effort to boost his opponent Hillary Clinton’s chance of winning the election. This conspiracy theory has so many holes in it that it’s hard to know where to begin. But let’s start with the glaringly obvious: If the aim was to make Trump lose, why wasn’t all the known information about the Trump campaign’s Russia connections leaked before the election, when it might have had some impact?

The truth appears to be precisely the opposite of what Trump says, which is not uncommon. The record suggests that Justice and the FBI were so uncomfortable investigating a presidential campaign in the weeks and months before an election that they tiptoed around promising lines of inquiry rather than appear to be taking a side. The FBI director at the time was James B. Comey, and while we heard plenty about Clinton’s emails before the vote, we had no idea that such a mature investigation of the Trump campaign was underway.

Now that the Mueller probe has bored into Trump’s inner circle — and federal authorities have raided the homes and office of his personal attorney, Michael Cohen — the president appears to be in a panic. The question is whether he sees this “spy” nonsense as a way to discredit Mueller’s eventual findings, or as a pretext for trying to end the investigation with a bloody purge akin to Richard Nixon’s “Saturday Night Massacre.

The Justice Department answered Trump’s tweeted demand by announcing that an existing investigation by its inspector general will now “include determining whether there was any impropriety or political motivation” by the FBI. Deputy Attorney General Rod J. Rosenstein may hope that is enough to avoid a showdown. I fear he is wrong.

None of this is normal or acceptable. One of the bedrock principles of our system of government is that no one is above the law, not even the president. But a gutless Congress has refused, so far, to protect this sacred inheritance.

Trump is determined to use the Justice Department and the FBI to punish those he sees as political enemies. This is a crisis, and it will get worse.

Richard Nixon faced certain impeachment for far less.

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