Donald Trump is using the bully pulpit of the presidency (emphasis on “bully”) to politicize the criminal justice system, punish politicians who won’t toe his line, and humiliate private citizens who dare to speak out against him.
Whether Trump’s abuse of power is criminal, or only dangerously unethical, probably depends on whether he has crossed the line into criminal obstruction of justice. That judgment will be made by Special Counsel Robert Mueller, assuming that Mueller will be allowed to complete his investigation. As I discussed in an earlier article, that is by no means certain.
Harvard Law Professor Alan Dershowitz has already rendered his verdict. Dershowitz recently has authored a series of articles exonerating Trump of any criminal misconduct. One of Professor Dershowitz’s articles, published in the Washington Examiner, makes the argument that Trump has not committed the crime of obstruction of justice.
Other legal scholars have a different view. Duke University Professor of Law Samuel W. Buell, who served as the Justice Department’s lead prosecutor in the Enron case, recently wrote that “the obstruction of justice case against Trump is already a slam dunk.” At the end of the day, Buell believes that “it is highly likely that special counsel Robert Mueller will find that there is a provable case that the president committed a federal felony offense.”
When the time comes, Mueller will make that call one way or the other. Whatever he concludes is fine by me. He has the expertise, independence and integrity to decide whether Trump has committed a crime. His decision, either way, should be entitled to respect by the American public. And Congress, of course, will make the ultimate decision on impeachment.
But neither criminal accountability nor the prospect of impeachment takes the full measure of Trump’s abuse of power. More important is the damage Trump is inflicting upon the rule of law, separation of powers, and the checks and balances that protect our democracy.
Until recently, the centerpiece of the abuse of power case against Trump was his prevailing on then-FBI Director James Comey to drop his criminal investigation of Trump’s friend and political ally Michael Flynn, and then isolating, and ultimately firing Comey when he refused to do so.
Much has been made of the fact that Trump didn’t directly order Comey to drop the investigation, he only told Comey what he hoped he would do.
What’s the difference? The rote insistence of Trump defenders that you can’t prosecute somebody for “hoping” is hogwash. When the President told the FBI Director that he “hoped” he would drop the Flynn investigation, he wasn’t blowing out a candle and making a wish, or saying his nightly prayers, or wistfully emoting about his innermost hopes and dreams. He wasn’t “hoping.”
He was telling the FBI Director what he wanted him to do.
Even if Trump’s marching orders to Comey fell an inch short of being a direct command, the threat was implicit. It was, at the least, a brazen attempt to influence the criminal justice system, at the highest level, for political and personal reasons.
Trump’s dispatching of Comey isn’t the only example of his meddling in the criminal justice system. He is currently engaged in an attempt to influence and ultimately terminate the criminal investigation being conducted by Special Counsel Mueller. Trump’s ugly campaign to humiliate his own Attorney General into resigning is about nothing other than regaining control of Mueller’s investigation.
No Sessions, no recusal. No recusal, no leaving it up to Deputy Attorney General Rod Rosenstein to oversee the Mueller investigation. No Rosenstein, the decision defaults to Trump’s newly minted Attorney General. Bye-bye Mueller.
While Trump is working to thwart one criminal investigation, he is using the presidential bully pulpit to start another. He is calling for the Justice Department to open a criminal investigation against the perennial object of his obsession, Hillary Clinton.
No matter that Clinton was already investigated by the FBI for more than a year, an investigation that led to a decision not to file any criminal charges. Trump is publicly calling on his Attorney General, who he says has “taken a VERY weak position on Hillary Clinton crimes,” to open a new investigation against her. “So where is the investigation A.G.?” he asks.
Think about that. A president of the United States is using his presidential authority and influence to terminate a criminal investigation against a political ally, and at the same time to open a criminal investigation against a political rival who has already been cleared.
This is the stuff of authoritarian regimes and banana republics.
This behavior, if not outright criminal, is more than just “inappropriate” or “crazy.” It’s not just Trump being Trump.
It is an assault on the rule of law and the integrity of the criminal justice system.
The Department of Justice, under the supervision of the Attorney General, has the awe-inspiring power to prosecute people and deprive them of their freedom. That’s serious business.
Our criminal justice system’s charter is to investigate and prosecute criminals, not to reward or punish political rivals. To have any legitimacy, it must be free from political interference.
Maintaining the independence of the Department of Justice requires the willingness of all involved to adhere to certain norms and standards, both written and unwritten. It requires good faith and a clear understanding that law and politics don’t mix.
Since the Justice Department is a creature of the Executive Branch, there is no doubt that the President has a large measure of constitutional authority over it.
But the proposition that the Justice Department should be free from political interference, especially from a president, is deeply embedded in our civic life. Strong measures have been taken in the last 50 years to prevent politicization of the Justice Department. The evolution of guidelines designed to protect the federal criminal justice system from presidential interference is discussed comprehensively in an excellent Politico article by journalist Isaac Arnsdorf. My discussion of the those guidelines below borrows heavily from the Arnsdorf piece.
The idea that the Justice Department must be free from political interference isn’t rooted in any statute or explicit constitutional provision. Rather, it evolved as a hard-earned lesson from scandals that erupted during the Nixon and Carter administrations. It is now documented in a series of internal policy memos and letters issued by past Justice Department officials, the first of which was issued in 1978. The 1978 policy memo limited the number of DOJ people who could interact with the White House or Congress about specific criminal cases.
In 2009, Attorney General Eric Holder expanded on the 1978 memo, further limiting interactions concerning criminal investigations and prosecutions between the DOJ and the White House. “The rule of law depends upon the evenhanded administration of justice,” Holder’s memo began. “The legal judgments of the Department of Justice must be impartial and insulated from political influence.”
You don’t have to be a legal scholar to understand the clear import of these guidelines: presidents should keep their mitts off Justice Department criminal investigations and prosecutions. The criminal justice system is about law, not politics.
Trump’s colossal ignorance is such that he is likely unaware of these guidelines. Even if he hasn’t bothered to educate himself on Justice Department guidelines on communications with the White House, one would think that he would have at least a grade-school understanding of the bedrock American values that underlie the separation of law and politics.
But he doesn’t.
And Trump’s abusive bullying is not limited to the criminal justice system. It extends also to the other two branches of government, the federal judiciary and Congress.
During his campaign, he attacked a federal judge who had done nothing more than issue a standard, obvious ruling in a case against him. And he did so on shamelessly racist grounds. His attack on the judiciary continued during his presidency, when he repeatedly threw fits over court rulings on his travel ban, accusing the judges of incompetence, bias, and disregard for the safety of the American people.
He also uses his presidential power to bully members of Congress and the Senate, openly threatening to take active political revenge if they don’t support him. During the campaign, Trump vowed to spend millions to defeat conservative Republican Senator Jeff Flake, who had the temerity to criticize Trump for his disgustingly sexist statements on the Access Hollywood tape, and his proposal that every member of the Muslim faith be banned from coming to the United States. The Trump White House has continued the assault on Flake, meeting with at least three prospective candidates to oppose Flake in a Republican primary.
Not even people outside of government are immune from Trump’s abusive bullying. He has used his presidential platform to humiliate and denigrate private citizens, like Mika Brzezinski, in the crudest terms imaginable. He has attempted to politicize members of the United States Navy by asking them to call members of Congress in support of his proposed budget and his policy on health care (whatever that may be). He has even tried to politicize the Boy Scouts in a shockingly inappropriate speech that would have been over the top even at an adult campaign rally.
Some of this may seem like trivial stuff, but it isn’t. A president of the United States occupies a position of such power that he can only punch down. Common decency and a good upbringing have historically inhibited presidents from abusing their position of authority.
Follow Philip on Twitter at @PhilipRotner. Philip Rotner is an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated.