THE MORNING PLUM:
This morning, new details are emerging about the depth of President Trump’s efforts to subvert the workings of justice in order to undermine an ongoing investigation into himself and his cronies. We still don’t know how far Trump will go in this regard.
But here’s one thing we do know: He is seriously considering pushing this interference as far as he thinks he’ll be able to get away with, meaning that external constraints — or a belief that doing this will backfire on him politically — may be the only things capable of stopping him.
We know this because Trump has told us so himself, in his own words, repeatedly. Perhaps we should believe him.
The Post and the New York Times report that at yesterday’s meeting between congressional Republicans allied with Trump and officials from the White House and the Justice Department, the White House brokered a deal to allow those Republicans to view highly classified documents relating to the FBI informant that Trump and his allies have railed about. It is still unclear precisely what Justice officials agreed to; we’ll learn more in coming days.
This may buy some time. But it represents yet another step in the president’s continuing encroachment on the independence of this investigation. It may serve as a setup for another lurch in this direction: Republicans will be given access to these documents and will profess themselves unsatisfied, arguing that they are now more convinced than ever that the informant improperly “spied” on the Trump campaign. (The best reporting indicates that the informant tried to gather information from Trump advisers after the FBI obtained evidence that those advisers had questionable contacts involving Russia — that is, as part of a legitimate counterintelligence investigation.) Perhaps those Republicans will selectively leak info to further the more nefarious interpretation.
Then Trump could potentially order a full Justice Department investigation into the genesis of the probe, or fire Deputy Attorney General Rod J. Rosenstein and replace him with a loyalist to limit the probe, or even try to remove special counsel Robert S. Mueller III. But whatever is to be on that front, what we now see happening is that Trump is directly pressuring Justice to conduct this investigation into his campaign in a certain way, and at least to some extent, it is complying. As Charlie Savage puts it, Trump is slowly eroding an “established constraint on executive power.”
Trump signaled in his own words that he was going to do this and more. Trump recently tweeted that “at some point” he will “use the powers granted to the Presidency and get involved!” Late last year, he said that “I have absolute right to do what I want to do with the Justice Department.” On still another occasion, Trump revealingly admitted that he is “very frustrated” by the fact that he is “not supposed to be involved” with the Justice Department, meaning he recognizes there is a norm that dictates this limit on his power, but he sees it as an inconvenience and does not recognize that there are good institutional reasons for preserving it.
This is the crux of the problem. And a new scholarly paper helps shed light on the deeper conundrum at work here.
The crux of the problem
The paper, by law professors Rebecca Roiphe and Bruce A. Green, traces the relationship between prosecutorial independence and the White House throughout the nation’s history. They argue that there is an inherent ambiguity in the idea that the president controls the executive branch, which is supposed to oversee the enforcement of the law, even as prosecutors — and, in particular, the Department of Justice — are supposed to be answerable to the law and are not supposed to be subject to manipulation by the president for political reasons.
As they note, the president’s role as head of the executive branch has led many to argue that the president has total authority to dictate what Justice investigates and how, even involving investigations into himself. (This is the argument that Trump and his allies make.) But this overarching idea has periodically come under strain. As the power of the federal government and law enforcement expanded in the 20th century, the idea of prosecutorial independence developed as a “central norm” that helped “preserve the legitimacy of the system.” After the Watergate abuses, this ideal of prosecutorial independence further became seen as a kind of check on presidential power, which is somewhat paradoxical, since Justice is part of the executive branch.
But that paradox gets at the central tension here. The Watergate scandal led some to propose isolating Justice entirely from the executive branch. But this, too, was seen as unworkable, because that would mean the Justice Department is not subject to political accountability. So Justice must be overseen by the executive branch. But that subjects it to presidential manipulation. The answer to this thorny problem is the norm of prosecutorial independence. The answer is the idea, as one senator put it during Watergate, that the Justice Department’s “client is not only the president of the United States but includes the people.” The president is their boss, but prosecutors are answerable to the law and to the people as well. That norm’s existence depends on it being observed by both prosecutors and the president alike.
But this is an idea that Trump plainly does not accept. He has said again and again and again in his own words that he views law enforcement as merely an instrument of his political will, to be turned loose on his political opponents at his whim and to be weaponized against itself when it tries to hold him accountable. This appears rooted in a uniformly corrupt impulse that also animates all of his profiteering off the presidency (As Adam Serwer writes), and is an extension of his long history of trampling rules and laws with impunity as a businessman (as Timothy L. O’Brien writes). As president, it’s not clear that Trump recognizes any institutional obligation of any kind to the law or to the people.
Right after Trump won the presidency, Masha Gessen counseled us to “believe the autocrat,” because he “means what he says.” We don’t know how far Trump will take his interference with law enforcement. But we do know that he doesn’t recognize any legitimate limits on how far he should take it, other than whatever constraints exist on what he can get away with. He has basically told us so himself. And as we are now learning, he obviously meant it.
* WILL DEMOCRATS GET TO SEE INFO ABOUT INFORMANT? The New York Times reports that the White House has brokered a deal that will allow congressional Republicans to see documents related to the “FBI informant” Trump and his allies have railed about. But:
It was not clear … how much of that information will now be shared with lawmakers and in what form, or who it will be shared with and in what venue. Democrats have typically been given the same access as their Republican counterparts to delicate files related to the case, but officials on Capitol Hill said they had been given few firm details on the apparent agreement.
We’ll see if Democrats do get the same access, but it seems likely that, once Republicans have seen the info, there just might be some selective leaking about it.
* SECRET INFORMANT IS OUTED: The Post has published the name and life details of the FBI informant, Stefan A. Halper, a former University of Cambridge professor with multiple connections to intelligence professionals and past GOP administrations:
Between 2000 and 2001, Halper contributed more than $85,000 to George W. Bush’s first presidential bid and the Republican National Committee, according to campaign finance records. Most friends describe him as a moderate Republican who is hawkish on China and deeply committed to U.S. institutions, having worked for years inside and around the federal government.
That will fuel the “Deep State” nonsense. But as The Post notes, Halper did meet with Trump officials, but as part of a counterintelligence operation — what the FBI is supposed to be doing.
* PAUL RYAN IS IN RIGHT’S CROSS HAIRS: The Associated Press quotes several House Republicans who say that if House Speaker Paul D. Ryan (R-Wis.) agrees to a compromise pushed by moderates protecting the “dreamers,” he may be deposed as speaker:
Rep. Ted Yoho, R-Fla., said it would cause “a lot more disgruntlement” if the moderates prevail, adding, “People in my district want him to go, now.” “If we run an amnesty bill out of a Republican House, I think all options are on the table,” said Rep. Scott Perry, R-Pa., … when asked if Ryan should remain as speaker if the moderates’ effort succeeds.
Ryan opposes the discharge petition that would force a vote legalizing the dreamers — because it would have majority support and would pass, which would make the right very, very angry.
* WHY MODERATES ARE PUSHING VOTE ON ‘DREAMERS’: Lauren Fox reports on what’s driving the push by moderate House Republicans for a discharge petition to legalize the dreamers:
Faced with a potential blue wave and anti-Trump sentiments back home, members from swing districts or those where Hillary Clinton won in a landslide are hungry to distinguish themselves in any way possible. … Without it, many say, it’s hard to show voters where they stand and that leadership’s calls to wait just a little longer aren’t compelling any more.
But wait, I thought Trump’s immigration crackdown was supported by a vast silent majority in this country. Now it’s imperiling moderate Republicans?
* HOW COMPANIES ARE SPENDING THEIR TAX SAVINGS: CNN reports that the GOP tax cut has not produced the boom in job-creating investment that Republicans promised. But:
Almost immediately, Corporate America returned a big chunk of its windfall to shareholders in the form of fatter dividends and bigger share buybacks. … All told, S&P 500 companies showered shareholders with $178 billion of stock buybacks during the first quarter, according to S&P’s Howard Silverblatt.
Corporate America is doing so much winning under Trump, it’s going to get tired of all the winning.
* HOW RUDY’S GAME WITH MUELLER WORKS: Trump lawyer Rudy Giuliani has claimed Mueller has promised to wrap up part of the probe early and that Mueller doesn’t think he has the power to indict a president. Politico notes:
In an interview Monday, Giuliani said Mueller hasn’t objected to any of his statements. “I am relaying things accurately,” he said. As is its custom, Mueller’s office declined to comment on Giuliani’s statements.
Get it? Giuliani makes claims about what Mueller said, then notes Mueller didn’t object, secure in the knowledge that Mueller won’t comment either way. Pretty cool trick, bro.
* TRUMP IS ‘DISTRACTED’ AND ‘SPREAD TOO THIN’: Axios reports on several reasons Trump appears to have caved in the trade war with China, including this:
The president’s attention is spread too thin — Iran, North Korea, Mueller and more — to wage a sustained battle with China. Aides describe a White House deluged with big decisions and scant deciders — and a president perpetually obsessed and distracted by Mueller.
As Axios also notes, China believes it can play Trump, who desperately wants a win and is too distracted to grasp (or incapable of grasping) the details.