If every FBI subject were as loose-lipped and oblivious as President Trump, they’d need to build more federal prisons. His latest outburst came on “Fox & Friends” Thursday morning: “And our Justice Department — which I try and stay away from, but at some point I won’t — our Justice Department should be looking at that kind of stuff, not the nonsense of collusion with Russia!” Several aspects of this require scrutiny.
First, if Trump is “trying,” he’s not trying very hard. Consider his ongoing threats to fire Deputy Attorney General Rod J. Rosenstein and special counsel Robert S. Mueller III, his rage at Attorney General Jeff Sessions over his decision to recuse himself from Russia matters, his request of then-FBI Director James B. Comey to give fired national security adviser Michael Flynn a pass, his request of “loyalty” from Comey, his firing of Comey, his pressure campaign to oust former deputy FBI director Andrew McCabe, his constant hectoring to investigate his former political opponent Hillary Clinton and his unfounded accusations of FBI corruption. If that is “staying away” from the Justice Department one shudders to think what interference would look like.
Former White House counsel Norman Eisen explains, “Obstruction occurs when anyone interferes with a law enforcement investigation with ‘corrupt intent’ (as all America now knows thanks to Trump turning our media into a long-running criminal law seminar).” He points to “a mosaic of evidence, substantial evidence, of obstruction, that was deepened by Trump’s reported repeated threats to fire Robert Mueller after he took over investigating ‘this Russia thing.’ Now comes yet another threat to interfere.” He adds, “Corrupt intent is indicated by the long pattern of self-interested dealing, not to mention the spurious nature of the ‘kind of stuff’ Trump wants DOJ to look at, and his premature declaration regarding collusion.”
Second, Trump’s language betrays his motive to interfere with, to obstruct, the Russia investigation. Ironically, “corrupt intent,” usually difficult to prove, is now being demonstrated to millions of viewers. “Trump’s ominous statement that ‘at some point [he] won’t’ stay ‘away from our Justice Department’ can help weaponize public and hopefully congressional support for measures to protect Mueller and Rosenstein and, in that sense, the remark is helpful to Mueller,” says constitutional scholar Laurence H. Tribe. Trump persists in telling us he wants to rid himself of what he thinks is a witch hunt. However, former federal prosecutor Joyce White Vance tells me, “It is not up to the President to decide which criminal cases get investigated. And it’s especially important to adhere to this rule of law if the President tries to interfere with an investigation that is coming perilously close to his friends, family and possibly even himself. Otherwise, there is no justice.” Indeed, the bipartisan bill to protect Mueller passed the Senate Judiciary Committee 14 to 7 with four GOP votes. (Now it’s up to Senate Majority Leader Mitch McConnell (Ky.) to decide if he will exercise his constitutional obligations or if he’ll continue as Trump’s enabler.)
And that brings us to the reason Trump’s incessant threats and efforts to micromanage the Justice Department are so dangerous. Rachel Kleinfeld of the Carnegie Endowment for the Humanities wrote a prescient piece warning about the threats to liberal democracies when leaders use law enforcement as a political weapon or shield. “Authoritarian regimes, of course, are marked by political interference in military and law enforcement,” she writes. “In Argentina, Brazil, and Chile, a deep politicization of the police and military abetted authoritarian rule in the 1970s and 1980s and continues to cast a pall over their democracies. Elected leaders who wish to make their democracies more authoritarian often start with their country’s security apparatus.” From there, a downward spiral begins:
As forces politicize and are seen as connected to one party or another, the principle of equality before the law erodes. Agencies are viewed as protecting friends and punishing enemies, not upholding the laws of a nation. Security agents become increasingly distrusted by portions of the populace, who see these agencies not as enforcing justice, but as upholding a political order tilted against certain citizens. Distrust of the government grows, leading sub-populations to turn to gangs, vigilante self-defense, and militias to protect themselves.
The permanent politicization of the justice system is the real danger posed by Trump. Will he reset a new, low standard for manipulation of the Justice Department and FBI? If Trump gets away with this, how long will it be before the next Democratic president goes after her enemies or orders her handpicked attorney general to ignore ethical rules and protect him from prosecutors? Trump is doing great damage to democratic norms; unless he is held accountable, we’ll start down a slippery slope in which the rule of law and an apolitical criminal-justice system are things of the past.