Symposium | Trump Vs. Democracy

Subverting the Justice Department

By Matthew Miller

Tagged DemocracyDepartment of JusticeDonald TrumpRepublicans

On December 7, 2006, President George W. Bush’s Justice Department orchestrated the firing of seven United States attorneys. Several of the dismissed U.S. attorneys had resisted a push by the White House to investigate allegations of voter fraud or to launch probes into Democratic officeholders, and the subsequent scandal drew bipartisan condemnation from Congress and sparked multiple investigations. Amid a collective sense that the Justice Department had lost its traditional moorings, Attorney General Alberto Gonzales was forced to resign in disgrace in September 2007.

Thirteen years later, the U.S. attorney scandal looks quaint in comparison to current events. Attorney General William Barr has politicized Justice in ways previously unimaginable, giving President Donald Trump the legal enforcer he has wanted since day one and redefining the traditional relationship between the Justice Department and the White House. Trump and Barr have trampled on the post-Watergate norm that the Justice Department should make law enforcement decisions independent from the White House. Even worse, the Republican Party has responded not by criticizing the attorney general—as many Republicans did during the Bush-era politicization scandals—but by rallying to his defense. Together, they have shattered their party’s commitment to the apolitical enforcement of the rule of law on which a well-functioning democracy depends.

Barr’s list of transgressions is well documented. He meddled with Special Counsel Robert Mueller’s investigation, reaching legal conclusions that Mueller believed were outside the remit of the Justice Department and misleading the American public about Mueller’s work. He reversed the judgment of career prosecutors handling the sentencing of Roger Stone after the President tweeted that their recommended sentence was too light. He intervened in the prosecution of another Trump ally, Michael Flynn, to recommend the case be dismissed even though Flynn had already pleaded guilty. He fired a U.S. attorney who had overseen investigations of the President and his allies and lied to the public by saying the attorney had resigned.

Barr’s politicization of the Justice Department’s work extends beyond just protection of the President and his cronies, however. The attorney general has also used the department to retaliate against the President’s political opponents. He famously launched an investigation into the origins of the Russia investigation, targeting Obama-era officials at the FBI and other national security agencies. But he has moved under the radar as well, launching probes into how Democratic governors have handled COVID-19 and even using Justice’s antitrust division to harass businesses he perceives as ideological opponents. He regularly trumpets investigations into “far-left extremist groups” he claims are responsible for violence in America’s streets while downplaying his department’s prosecutions of actual violence by far-right groups.

Trump’s banana republic conception of the rule of law has been clear since the 2016 campaign, when he literally ran on locking up his opponent. But it is Barr’s execution of that vision that has proven so dangerous. For all of Trump’s attacks on Jeff Sessions, the Justice Department mostly held the line against presidential interference during his tenure as attorney general. Barr has reversed that stance, applying a gloss of legality to the President’s thuggish Twitter screeds and turning his improper demands into official government actions that Republicans on Capitol Hill and in the conservative media establishment defend with vigor.

It is that new reality that will prove most damaging in the long term. Trump and Barr may have been the ones to tear down the wall between the Justice Department and the White House, but it is the broader Republican Party that slowly came to accept their actions as normal—first by looking the other way, then by cheering them on.

During the Bush-era Justice Department controversies, GOP members of Congress at least pretended to express concern about the unfolding scandals at the department, and ultimately it was a loss of Republican support that forced Gonzales to resign. Republican senators defended the Bush Administration at times, but they expressed an openness to allegations of wrongdoing when presented with evidence from Justice Department employees.

Today, career Justice Department employees who come forward are attacked by Republicans as partisan antagonists. For example, at a House Judiciary Committee hearing in June, two whistleblowers presented bombshell evidence of serious misconduct at the department—misconduct that in any previous administration would have led to high-level resignations. Instead, Republicans excoriated the two witnesses, rallied behind Trump and Barr, and moved on.

Even Trump’s open interventions in the legal process on behalf of his political allies draw cheers from the GOP. When Trump commuted the prison sentence of Stone—who had bragged about how he resisted pressure to “turn on” Trump—House Majority Leader Kevin McCarthy called the action “correct.” Meanwhile, Senate Judiciary Committee Chairman Lindsey Graham said it was “justified.”

Trump and Barr have pushed an entire generation of Republicans to view the Justice Department as just another weapon for waging partisan combat. For them, the post-Watergate consensus that Justice should act independently of the White House is dead, and there is no reason to think it will be revived in a future Republican administration. Why would any Republican President respect the Justice Department’s independence when his party has made clear he will pay no price for subverting it whenever it is politically advantageous to do so?

Trump succeeded in this area by expanding the Republican Party’s long-term embrace of Know-Nothingism to include hostility toward independent law enforcement. The conservative movement has waged a decades-long campaign to discredit science, the media, and academia by accusing experts with whom it disagrees as biased while elevating cranks and kooks to positions of authority. The Justice Department now takes its place in the realm of institutions to be discredited when useful and abused when possible.

But a country whose democracy is built on a two-party political system cannot survive for long when one of those parties has abandoned its commitment to the undergirding pillars of democracy. Like freedom of speech and the right to vote, the rule of law is one such pillar. Flawed as its application has been throughout our history, our commitment to the rule of law has been a cornerstone of our political and economic development and a bulwark against authoritarianism. The Republican Party’s retreat from it, if left unchecked, will leave our nation perilously exposed to future strongmen more cunning and able than our current commander-in-chief.

Trump will eventually exit the stage, perhaps in the coming months, perhaps later. How much longer Trumpism endures is up to the Republican Party and, ultimately, us. The stakes could not be higher.

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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Read more about DemocracyDepartment of JusticeDonald TrumpRepublicans

Matthew Miller is a partner at Vianovo. He was director of the office of public affairs and chief spokesman for the Justice Department during the Obama Administration.

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