Scores of former department officials from both political parties said that the severe damage inflicted by the president on the department and its components over the past four years will become permanent and irreversible if Trump wins a second term. The result, they said, would be a fundamental subjugation of the rule of law and the transformation of the department into an overtly political operation.
No president since Richard Nixon has had as much of a negative effect on the Justice Department as Trump. He fired one FBI director and is considering firing another. He pushed out his first attorney general and is engaging in a public campaign to pressure current Attorney General William Barr to investigate his chief political rival, Joe Biden, hinting that he might dismiss Barr if he doesn’t.
Trump bulldozed the wall between the White House and the Justice Department meant to prevent political interference in prosecutions. He unleashed an extensive campaign against the FBI, accusing the nation’s buttoned-up and conservative-leaning law enforcement agency of being behind a secret cabal to take him down. He has left the bureau to deal with the long-term, real-world damage to its reputation.
“As bad as that has been over the past four years, it would be obviously even worse over the next four years,” Greg Brower, the FBI’s former congressional liaison and a Republican appointed by President George W. Bush as Nevada’s top federal prosecutor, told HuffPost.
“I worry a great deal about what they would do with another four years in power,” former Attorney General Eric Holder told HuffPost. “People need to understand that there’s no doubt that the Department of Justice is on the ballot this year.”
A number of former U.S. attorneys who were appointed by Republican presidents ― including a man who served as both FBI and CIA director under President Ronald Reagan ― agreed. They condemned Trump, whom they called “a threat to the rule of law in our country,” and endorsed former Vice President Biden, who they said would “refocus the Justice Department on the cause of impartial justice” and help address the country’s “deep-seated societal issues.”
“Joe Biden and Kamala Harris have hammered home that justice is on the ballot in 2020,” said Julie Zebrak, a former Justice Department official turned political consultant. “Four more years of manipulating DOJ to serve the president’s personal agenda — and personal vendettas — could very well bring the department to the point of no return.”
Indeed, for many Justice Department employees who endured four years of the Trump administration, the outcome of the election will determine the future of their careers. Significant brain drain is a near certainty if Trump wins another term.
A White House spokesman did not respond to HuffPost’s request for comment.
Holder said that four years of Trump had done “substantial” but recoverable harm to the Justice Department. He’s not so sure if Trump wins reelection.
“After eight years you would have such structural damage done to the department that I really worry about the ability of a new administration [in 2024] to actually repair the damage that would’ve been done after eight years under Donald Trump,” Holder said.
A few days before the 2016 election, a journalist shot off an email to his fellow reporters on the Justice Department beat, proposing Election Day drinks. It had been an unusual few months on a beat that was usually calm in the run-up to a presidential election, in part because of policies meant to prevent the department from affecting elections.
“Once every four years, it is certain that DOJ/FBI reporters will have a quiet few weeks before Election Day,” the reporter wrote. “That promise was stolen from us.”
There was FBI Director James Comey’s highly unusual press conference on Hillary Clinton’s emails in July, followed by the discovery of emails on Anthony Weiner’s laptop, which threw the whole campaign into chaos just days before the election. Ongoing investigations into Russian interference in the 2016 election had mostly faded into the background. The focus was on Clinton, and the FBI probe overshadowed any potential connections between the Trump campaign and foreign adversaries.
With Clinton far ahead in the polls, it seemed at the time that things on the Justice Department beat were about to return to regular order. The 2016 campaign’s effect on the Justice Department beat was supposed to be an aberration. But Trump’s surprise Electoral College win made it the new normal.
From the beginning of his 2016 campaign, fueled by chants of “lock her up” aimed at Clinton, Trump has viewed the Justice Department as a potential political tool, as a means of protecting his interests and punishing his enemies.
The Justice Department’s operations have always been affected by politics. The administration gets to set policy, and those policy changes trickle down to federal prosecutors across the nation. But the Justice Department itself isn’t typically a wholly political beast. It’s often a step removed from politics: influenced by politics, but not overtly political. That’s critical to its reputation.
But Trump wasted little time forcing his agenda on the Justice Department and making clear whom he wanted federal prosecutors to target. There was the travel ban. The firing of the acting attorney general. Major rollbacks on the Barack Obama administration’s civil rights agenda. Questionable prosecutions of protesters. Political pardons. And, most critically, the firing of Comey.
Suddenly, the Justice Department was the political story. The deputy attorney general became a household name. Television networks signed up former U.S. attorneys as contributors. Former Justice Department officials landed lucrative book deals.
Robert Mueller’s special counsel investigation ― itself a product of Trump’s overt interference in investigations and prosecutions that would affect him or his allies ― dominated the news cycle. And after Attorney General Jeff Sessions was forced out after the 2018 election, Trump found in William Barr an attorney general even more willing to do the president’s political bidding.
He spun the Mueller report ahead of its publication, creating, in Mueller’s words, “public confusion about critical aspects of the results of our investigation” that undermined the Mueller investigation’s central purpose: “to assure full public confidence in the outcome of the investigations.” When the Mueller report finally came out, it became clear how Barr had misled the public about its findings. The larger truth was this: Trump almost certainly escaped prosecution simply because he’s president of the United States.
Chris Truax, an appellate lawyer and former spokesman for Republicans for the Rule of Law, said that Barr turned himself into one of Trump’s “toadies” and embarrassed himself to advance Trump’s interests.
“Four more years of Donald Trump would be immensely corrosive to the rule of law. I am impressed and proud that we’ve held out as well as we have as long as we have. But that reserve of fortitude is not infinite,” Truax said. Many Republican lawyers appointed by Trump himself have helped thwart some of Trump’s worst plans, but the dam will eventually break under pressure, he said.
“They’ve just been chipping away at the guardrails of democracy, and eventually they’ll fail. Four more years I don’t want to even have to contemplate,” Truax said. “We’re already near the breaking point, … and another four years would do incalculable damage to the democratic institutions and norms that we’ve all come to take for granted.”
Trump just didn’t care about the rules that were supposed to protect the Justice Department’s reputation and prevent Americans from viewing it as a purely political entity interested in settling political scores rather than fairly enforcing laws passed by Congress.
Former White House Counsel Don McGahn prepared memos for Trump that laid out what he couldn’t do to make the Justice Department go after his political enemies, New York Times reporter Michael Schmidt said in his book “Donald Trump v. the United States: Inside the Struggle to Stop a President.” “There is a strong norm against political involvement in decisions about prosecution or criminal investigations,” McGahn wrote.
Americans and justice officials, McGahn wrote, “share a strong aversion to even the appearance that law enforcement decisions reflect political calculations rather than the sound exercise of legal judgment.” McGahn told Trump he had no authority to initiate an investigation of his political enemies and that there could be serious consequences ― including impeachment ― if he abused his power. There’s no evidence that Trump ever read the memos, Schmidt wrote.
Holder for years was criticized by Republicans aghast that the attorney general once jokingly referred to himself as former President Obama’s “wingman” in a radio interview. But for him, the breakdown of the wall between the Justice Department and the White House is astonishing to witness.
Holder said that Obama, a former law school professor, would have never thought of pressuring the Justice Department to conduct specific criminal investigations of his political enemies the way Trump has.
“I think you can search long and wide and look at anything you want, and you will never see Barack Obama ask Eric Holder to prosecute Mitt Romney or anybody else on the other side. That just didn’t happen,” Holder said. “You can’t point to anything that he asked me to do or that I did that was inconsistent with the principle of the independence of the Justice Department.”
Some Republicans hoped that the Mueller report, as well as Trump’s impeachment for trying to pressure a foreign country to launch a politically damaging investigation of Biden, would scold the president and teach him a lesson. Yet just weeks before the election, Trump publicly called for the Justice Department to use its powers to attack Biden.
Mary McCord, the former chief of the Justice Department’s national security division, said that a second term would see Trump continue to “use the department for personal political and financial purposes” and would mean that more department employees would have to stand up to pressure to uphold the department’s reputation.
“We’ve seen judges unwilling to accept representations from DOJ attorneys in court, demand further information in support of their reputations, and generally deny the department the benefit of the presumption of regularity,” McCord told HuffPost. “DOJ can recover from the last four years, but four more would further tarnish the Department’s reputation and further deplete its cadre of experienced attorneys.”
Barr and some of Trump’s appointed U.S. attorneys have been willing to go along with Trump’s push against groups such as “antifa” while generally downplaying the threat posed by white nationalists. Trump appointees have aggressively prosecuted the president’s perceived political enemies on highly questionable charges, often relying on rarely used federal statutes that greatly expand the power of the federal government and step on police and prosecutorial powers generally left to the states.
In the run-up to the election, the department attacked Democratic governors, declared certain Democratic-led cities “anarchist jurisdictions,” floated that they were considering federal criminal charges against mayors for their handling of unrest and put out incomplete information about an ongoing investigation that fueled fears of voter fraud. Even still, Trump is “not happy” with Barr, as he made clear in interviews with conservative media outlets last month.
Republicans have gone along with the plan to use the Justice Department to influence the election. A GOP congressional aide told Axios that Barr’s failure to deliver a report on the origins of the Russia probe ― a report the administration wanted to use to attack the Obama administration and Democrats ― before the election was a “nightmare scenario” because it was “arguably the number one issue for the Republican base.”
In an interview on Fox Business last month, Trump said that Barr’s fate ― whether he’ll be the “greatest attorney general in the history of our country” or an “average guy” ― would be determined by whether he made a splashy announcement that would benefit Trump’s campaign.
A Justice Department spokeswoman declined to comment on any pressure campaign.
Yet hours before before Trump’s call to Fox Business, the Justice Department showed how willing it was to accommodate Trump’s political interests. It blasted out a national news release about misdemeanor charges against two Portland protesters ― one 20, the other 18 ― who allegedly blocked the entrance to an Immigration and Customs Enforcement building and “failed to move despite repeated warnings not to impede vehicular traffic.”
Weeks later, when pro-Trump demonstrators showed up outside of Barr’s home to pressure him to take steps to help Trump’s campaign, Barr took a different approach: He reportedly shook hands with them and posed for photos.
If Biden does win the election, his attorney general will face a monumental task: undoing the rank politicization of the department while untangling and unwinding the controversial cases and investigations launched by Barr.
When Holder arrived at the department in 2009, he spoke about the need to restore and rebuild the Justice Department’s Civil Rights Division, which had been heavily politicized and gutted during the Bush administration.
This time around, Holder thinks the job will be much bigger. Components such as the FBI have been “pilloried by this president” and need to deal with major morale problems.
“The department has been taken off a road that I think it’s basically been on since the Nixon administration, where there’s been that separation of the Justice Department from the White House,” Holder said. “You really need to look at the department as a whole. The people there, both in the field and at main justice, their motives have been called into question, their patriotism has been called into question, and all of that has to be dealt with. The department has got to be restored to what it was and what it must always be and clearly not what it is now.”
Brower, the former FBI official and elected Republican, hopes that the Justice Department can “snap right back into shape” with new political leadership that understands how the White House is supposed to interact with career officials at the department.
Brower said it would “take some work” to restore the FBI’s reputation and that it was important to separate legitimate concerns about transparency and oversight of the bureau from the purely partisan approach Trump took.
“Increasingly, folks have figured out that this is just a sham. This guy is not serious. He just says these things for political reasons. He’s not sincere. But, you know, he’s still got somewhat of a following out there. I don’t think it’s enough to be reelected,” Browser said.
“I’m not going to speculate on who the next AG is going to be, but I will say that he or she is going to have a lot of work to do to rebuild trust inside and outside the institution,” Holder said. “I think that a President Biden would understand the work that needs to be done and give a future attorney general the space that he or she needs to restore integrity and the independence of the department.”
FBI Director Chris Wray’s fate also likely hangs in the balance. Wray ― who told senators during his confirmation that he would quit before breaking the law for the president ― has generally declined to get sucked into politics the way Trump would like.
Wray shot down the false notion, heavily promoted by Trump, that voter fraud is a widespread problem in America. As some conservatives have spread theories about mass conspiracies by the loosely organized anti-fascist movement known as “antifa,” Wray said that antifa is an ideology rather than an organization. He even recently signaled support for peaceful demonstrations, telling law enforcement officials that “the voices of people demonstrating to support the bedrock principles of justice and equality deserve to be heard.”
The FBI Agents Association wrote a letter to both Biden and Trump urging them both to keep Wray on the job no matter who wins the election. “Major law enforcement associations representing current and former FBI agents as well as police and sheriff’s departments across the country have consistently expressed their full support of Director Wray’s leadership of the bureau,” a senior FBI official told HuffPost.
Holder said it might be a good idea to more explicitly spell out the limits on the relationship between the White House and the Justice Department in order to leave no doubt about where the ethical lines lay.
“A lot of the concepts that we have called ‘norms’ President Trump has just run roughshod over,” Holder said. “I think that in order to prevent that from happening in the future that perhaps we need to codify some of these norms, … especially in terms of the relationship between the White House and the Justice Department.”
The new attorney general will also have to address how to handle controversial cases already brought by the Trump administration and how to handle investigations of members of the administration, including Trump himself.
The administration has initiated a number of irregular federal prosecutions, aimed in particular at ideological opponents of the president. Crimes that would have been considered local matters were elevated to federal prosecutions.
Past administrations have hesitated to dismiss ongoing cases even when they disagreed with the approach to the cases, Politico reported. Changing course on such prosecutions could give rise to controversy, especially if Republicans were able to paint the Justice Department as soft on rioters and even if the federal prosecution of otherwise local crimes seems to violate the principle of states’ rights, a core conservative principle.
If Trump leaves office, the statutes of limitation on many of Trump’s potential crimes would still be running. An electoral defeat would deprive Trump of the “get out of jail free” card that comes with the Oval Office under longstanding Justice Department legal opinion.
That’s the trap that awaits a Biden administration. Trump isn’t going to go away after the election. He’ll have a massive platform and a conservative media system that will stand ready to accuse the Biden administration and the so-called “deep state” of unfairly targeting Trump. Efforts by the Biden administration to clean up the Trump White House’s actions could be quickly spun into an effort to politicize the Justice Department. (Making such claims without support would, of course, expose most congressional Republicans to charges of hypocrisy).
Holder — who had federal prosecutor John Durham investigate whether CIA officials broke the law by using unauthorized interrogation techniques in connection with the deaths of two individuals overseas and destroyed videotapes — said a new administration would have to come up with a strategy for investigating past misconduct. Holder’s investigation was relatively limited. The next attorney general will be looking at a much larger scope of potential conduct.
“There’s such a wealth of inappropriate conduct coming from the Trump administration that I think that they’re actually going to have to prioritize what they’ll look at,” Holder said. “If you looked at all the negative things, all the inappropriate things, you would spend an inordinate amount of time focusing on the inappropriate conduct by cabinet members, White House officials, the president himself, and that could inhibit the ability of the new administration to focus on what the American people want them to focus on.”
He thinks the new administration has to define the scope of the conduct it wants to examine, figure out what that universe looks like, and move ahead.
“I think a targeted approach into the most egregious instances of misconduct is probably the way to go,” Holder said. “But I don’t think you can simply let it go. People need to be held accountable.”