Symposium | Trump Vs. Democracy

Interfering in Investigations

By Barbara McQuade

Tagged DemocracyDepartment of JusticeDonald Trump

Donald Trump has assaulted norms throughout his presidency, and one of his most egregious attacks has been his intrusions into the Department of Justice. Politics, or even its appearance, has no place in criminal investigations in a nation that values the rule of law. And yet Trump has run roughshod over this principle.

Trump has expressed the view that the attorney general serves his interests rather than the interests of the American people. From the earliest days of his presidency, Trump has bristled against the notion of an independent Justice Department. Former FBI Director James Comey testified that Trump asked him to pledge his loyalty to Trump, perhaps a relic of a life spent as the boss of his own business. When then-Attorney General Jeff Sessions recused himself from the investigation into Russian election interference, Trump reportedly demanded to know, “Where’s my Roy Cohn?”, a reference to his one-time legal fixer who was known for pushing ruthless “legal” tactics. In contrast, the attorney general is supposed to represent the United States, not the President.

Trump appears to have found his Roy Cohn in William Barr, who has often created the appearance of a Justice Department that is helping Trump to reward his allies and punish his enemies. After Barr took office, he began to dismantle the work of Special Counsel Robert Mueller, who indicted more than 35 individuals and entities related to his investigation into Russian election interference. When Barr received Mueller’s report, he issued a letter with his own spin before releasing the report to the public, prompting a federal judge to call Barr’s account “distorted” and “misleading.” The judge wrote that differences between the report and Barr’s characterizations “cause the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary.”

Barr also took steps to undermine some of Mueller’s cases. He oversaw the motion to dismiss charges against Trump’s former National Security Adviser Michael Flynn, who pleaded guilty to lying to the FBI about his discussions with the Russian ambassador, undermining sanctions imposed by the United States to punish Russia for attacking the 2016 presidential election. That motion remains pending.

And Barr orchestrated a reduced sentencing recommendation for Trump associate Roger Stone, who was convicted of concealing the Trump campaign’s contacts with WikiLeaks in distributing emails stolen from campaign rivals. Barr overruled the career prosecutors assigned to the case, prompting them to withdraw from it, and one to quit the DOJ altogether. After a judge sentenced Stone to 40 months in prison, Trump commuted his sentence.

In addition to rewarding friends, Trump has also used the Justice Department to punish his enemies. He has made public and private statements encouraging criminal prosecutions of Comey, former FBI official Andrew McCabe, Hillary Clinton, and the Clinton Foundation. Trump has frequently used Twitter to suggest criminal prosecution of his foes, such as this February 2019 tweet: “Wow, so many lies by now disgraced acting FBI Director Andrew McCabe. He was fired for lying, and now his story gets even more deranged. He and Rod Rosenstein, who was hired by Jeff Sessions (another beauty), look like they were planning a very illegal act, and got caught . . . ” While McCabe was never charged with a crime, he was investigated, and hired lawyers to represent him. Some reports suggest that the case fizzled only because a grand jury refused to indict him.

Barr has appointed U.S. Attorney John Durham of Connecticut to investigate the Justice Department officials who probed Trump’s campaign regarding links to Russian election interference. One person has been charged to date as a result of the investigation—an FBI lawyer who altered an email in support of a surveillance warrant. More charges may be in the offing as the election approaches, causing some to fear an “October Surprise.”

Trump’s conduct has exposed a need to formalize some of the Justice Department norms that had existed since the post- Watergate era.

Trump’s conduct has exposed a need to formalize some of the Justice Department norms that had existed since the post-Watergate era. As outlined in a recent report by the Center for American Progress, a number of steps are needed to restore trust across the board at DOJ. Three proposed reforms in particular address the independence of investigations: restricting communications between DOJ and the White House, limiting prosecution activity near an election and keeping partisan politics out of charging, and reforming sentencing decisions.

First, limiting communications between the White House and the Justice Department is important to maintain DOJ independence, as well as the appearance of independence. Communication about specific cases should be a one-way street, with top-level DOJ officials advising White House leadership about cases only when necessary to the performance of the President’s duties. White House officials should not, for example, inquire on whether certain individuals are under investigation, such as when, according to Comey, Chief of Staff Reince Priebus asked if Flynn was the subject of surveillance under the Foreign Intelligence Surveillance Act. The FBI and other DOJ entities should be left alone to pursue cases based on facts and law alone. Violations of these rules should be reported to Congress.

Second, DOJ should avoid law enforcement activities that could influence an election. Barr has taken a narrow view that current DOJ policy prohibits only actions against a candidate for office and his close aides, paving the way for that October Surprise from Durham. But investigations should not even be part of the political debate. There is an unwritten rule at DOJ that public investigative activities not occur within the last 60 days before an election, so as to avoid influencing the outcome. Time to put it in writing. While there may be some cases where action is necessary no matter how close an election may be, officials must consider whether investigative activities can wait until after an election to avoid having an effect on the results. Otherwise, DOJ may be improperly influencing election outcomes or creating the perception that it is, undermining its reputation for fairness. This decision should be made by a career prosecutor, such as the head of the Public Integrity Section, rather than the attorney general, who is closely aligned politically with the President.

Third, DOJ must ensure that charging and sentencing decisions are never made to reward the President’s allies or punish his enemies. One way to achieve such a goal is to leave such decisions to career line prosecutors and their supervisors, and not to permit the attorney general to overrule their decisions when the defendant is closely aligned with the President.

In America, we have long believed that no one is above the law. But when the rule of law is not enforced fairly, it loses its legitimacy. People no longer feel compelled to comply with the law when they see that it is applied unevenly based on whether someone supports the President. When ordinary Americans no longer respect those who enforce the law, jurors will be less likely to believe the testimony of a federal agent at a trial, and residents will be less eager to answer the door when an agent comes to ask questions about a kidnapping, for example. As a result, our nation will be less safe. Only by restoring the integrity and independence of our criminal justice system can we be the nation we claim to be.

From the Symposium

Trump Vs. Democracy

No President in our history has presented such a threat to the Constitution and our democracy as this one. In this special issue, we asked 35 contributors to describe different aspects of the assault. We could have asked twice that number.


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Barbara McQuade is a professor from practice at the University of Michigan Law School. She served as United States Attorney for the Eastern District of Michigan and Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee from 2010-2017.

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