Trump's disgraceful assault on the DOJ is an attack on the rule of law | Lawrence Douglas | Opinion
It is by now familiar that Donald Trump has turned organized lying into a first principle of governance. Michel de Montaigne’s observation that the “reverse of truth has a thousand shapes and a boundless field” could serve as the future epithet of the Trump presidency.
But this week the president has gone one step further. In forcing the Department of Justice to launch an investigation into “whether Obama’s FBI and DoJ infiltrated or surveilled our campaign for political purposes”, Trump has demonstrated his power to create durable institutional realities out of politically charged falsehoods.
This is a disgraceful but not surprising assault on the independence and integrity of the justice department. The refusal or inability to tolerate the independence of law enforcement officials remains the source of Trump’s most persistent problem. In firing James Comey for refusing to indulge Michael Flynn’s crimes and unwind the Russia investigation, Trump invited Robert Mueller’s appointment. Mueller, as we all know, has been looking into whether this firing constituted obstruction of justice. Now piling deflection on obstruction, Trump seeks to distract attention from his prior malfeasance by turning the tables on his investigators. They are the true criminals.
The strategy is not without its shrewdness. With his slanders parroted by the likes of Devin Nunes and Trey Gowdy and amplified by his satraps at Fox News and Breitbart, Trump has successfully eroded confidence in the neutrality of the independent counsel. A recent CBS News poll shows that a majority of Americans (53%) believed the Mueller investigation to be politically motivated. This most toxic and divisive of presidents has largely succeeded in turning justice into a partisan issue.
As a second matter, in demanding that the justice department investigate the bogus claim of campaign infiltration, Trump manoeuvred the deputy attorney general, Rod Rosenstein, into a perilous position. Rosenstein could have resigned out of protest, a result that certainly would have been agreeable to Trump, who despises Rosenstein precisely because he has largely refused to knuckle under to the president. As any possible future firing of Mueller would have to go through the deputy’s office, forcing Rosenstein to resign would perhaps pave the way for Trump to appoint an official more willing to do his dirty work.
In point of fact, Rosenstein has not resigned. Rather, he referred the matter to the department’s inspector general with the statement: “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action.” This stopped short of launching a criminal investigation, still it handed Trump a victory. He has succeeded in investigating his investigators.
Trump’s manoeuvres are no less odious for their shrewdness. His brazen attempt to discredit federal investigators by frontally attacking the Justice Department’s independence is a dangerous and despicable attack on the rule of law that should be added to the ledger of the president’s impeachable offences.
Which does not make the attack criminal. Trump’s firing of FBI director Comey arguably obstructed justice, a criminal act. Mueller’s investigation will shed light on this matter, though obviously not to the satisfaction of those who insist the president enjoys plenary control over all executive appointees and thus can fire whom he wants, when he wants and for whatever reason he wants – including to frustrate an ongoing criminal investigation of the president’s own activities.
But no such charge can be levied against the president here. In ordering the investigation of his investigators, Trump has committed no crime. No law bars the president from doing what he has done. Rather, we are in the world of norms, precepts essential to the functioning of a constitutional democracy.
In a recent article, the law professors Bruce Green and Rebecca Roiphe ask: “Can the president control the Department of Justice?” The question is a bit like asking: “Can you drive 95 miles per hour?” On one level the answer is clearly no. But on another, things are murkier; if there are no police around to stop you, you can drive as fast as you please.
In the president’s case, long-standing practice and long operative norms counsel that the president must respect the independence of the Department of Justice. A president who, for example, demanded that federal prosecutors file trumped up charges against a despised journalist would be guilty of a grave violation of these norms. But can he do it? We are back to our reckless driver. Who can stop him? Prosecutors might balk from following the directive; they could resign rather than do the president’s biding.
During the Watergate scandal, President Richard Nixon notoriously ordered the firing of special prosecutor Archibald Cox. Both attorney general Elliot Richardson and deputy attorney general William Ruckelshaus resigned rather than execute Nixon’s directive. Cox was ultimately fired by then-solicitor general Robert Bork, but the fallout from what became known as the Saturday Night Massacre made impeachment all but inevitable, hastening Nixon’s resignation.
And so we are left with impeachment. We have grown accustomed to endless debates about the questions implicitly raised by the ongoing Mueller probe. Can the special prosecutor compel the testimony of the president by subpoena? Can a sitting president be indicted? Those who claim to offer unequivocal answers to these questions are simply making things up. The fact is, we don’t know the answers because we’ve never had to deal with the issue directly. The idea that the constitution, in its lapidary formulations, offers clear instruction is utterly fatuous.
But all the talk about whether indictment can proceed or must follow impeachment creates the impression that a president can only be impeached for having committed crimes and not, say, for his relentless demagogic assaults on constitutional norms and on the rule of law. This is false.
Half a century ago, the great political thinker Hannah Arendt wrote: “In constitutionally ruled countries, the political realm has recognized, even in the event of conflict, that it has a stake in the existence of men and institutions over which it has no power.” This is a lesson entirely lost on our current president. And for that reason alone he has demonstrated himself richly deserving of impeachment.
- Lawrence Douglas is professor of law, jurisprudence and social thought at Amherst College, Massachusetts