It is no trifle when Stephen Bannon attacks the “deep state.” It is not simply a legal ploy when Republicans running interference for President Donald Trump call the FBI “corrupt” or when Trump’s lawyer John Dowd calls to shut down the Russia investigation. When a witness to conversations and interactions with Trump who has turned over information to the investigation is fired, the danger goes beyond the investigation directly at hand. In one form or another, these are attacks on a vital pillar of democratic government: the apolitical administration of justice.
As to Dowd’s comments, which he later claimed represented his own views, reaction across the political spectrum was harsh, while many outside observers raised questions about the motive behind former FBI deputy director Andrew McCabe’s firing.
Senate Minority Leader Charles Schumer, D-N.Y., released a terse statement: “Mr. Dowd’s comments are yet another indication that the first instinct of the president and his legal team is not to cooperate with Special Counsel Mueller, but to undermine him at every turn. The president, the administration, and his legal team must not take any steps to curtail, interfere with, or end the special counsel’s investigation or there will be severe consequences from both Democrats and Republicans.”
Trump’s actions have broader implications for our democracy. Protect Democracy, a nonpartisan group seeking to check attacks on democracy and illegitimate executive branch power grabs, put out a white paper this month that now seems prescient. “If those in power can wield the enforcement authority of the state to punish their critics or opponents – or to turn a blind eye to law-breaking by their friends – we have lost the rule of law. Thomas Jefferson observed, and the Justice Department quotes on its website, ‘The most sacred of the duties of government (is) to do equal and impartial justice to all its citizens.’ Each time the White House intervenes with the Justice Department’s handling of a specific-party matter, it risks violating that sacred duty.”
When the president seeks to reach down into the Justice Department to tilt the outcome of actions or to punish individual lawyers for pursuing justice, a grave injury is done to our democracy.
Yascha Mounk, author of “The People vs. Democracy: Why Our Freedom Is in Danger And How to Save It,” tells me, “For citizens to have trust in their law enforcement agencies, justice doesn’t only need to be done; it also needs to be seen to be done. Given that Mr. McCabe was fired after continual attacks from the president of the United States, we already know that this important principle has been violated in this case.”
He adds, “Even if it eventually turns out that McCabe really did misbehave – and there is no publicly available evidence to substantiate that theory so far – the manner of his firing undermines the independence of the FBI and the trust Americans can put in their institutions.” He continues, “The alternative is even worse: If the charges against McCabe eventually turn out to be spurious, then the partisan takeover of the FBI is very far along. And that should terrify any American citizen who values his liberty or his democracy.”
That politicization of the Justice Department and the implicit threat of retaliation for crossing the president should be of grave concern.
Sen. Patrick J. Leahy, D-Vt., is right to call for immediate hearings. In a statement released on Saturday he said, “During my four decades in the Senate, I have never before seen our nation’s career, apolitical law enforcement officials so personally and publicly maligned by politicians – indeed, by our President. And I have never been so concerned that the walls intended to protect the independence of our dedicated law enforcement professionals, including Special Counsel Mueller, are at risk of crumbling.”
He recounted, “A month ago I asked Chairman (Charles) Grassley (R-Iowa) to hold a hearing on the escalating politicized attacks on the Justice Department and the FBI. We can all point to mistakes made by Justice Department officials over the course of high-profile investigations during the 2016 elections. Such mistakes rightly fall within the purview of the Judiciary Committee’s routine oversight functions. … I believe the Judiciary Committee will fail to fulfill its core oversight responsibility if it does nothing in this moment.”
Between Dowd’s comments and Trump’s after McCabe’s firing, we see the intensification of Trump’s deliberate interference with the Justice Department to suit the president’s personal interests. “Whatever Andrew McCabe did or did not do, his firing two days before retiring would obviously never have happened if the president hadn’t personally demanded it,” Protect Democracy Executive Director Ian Bassin surmises. He tells me that this incident shows that “Trump has moved from autocratic rhetoric to autocratic action, as personally ordering the purging of civil servants who are insufficiently loyal is what autocrats do.”
He warns the Justice Department inspector general and the Office of Professional Responsibility not to do Trump’s bidding. Bassin asserts, “Trump’s certain intervention was also so manifestly corrupt that it likely violated constitutional principles that limit a president’s authority to ‘do whatever he wants with the Justice Department.’”
In sum, recent events should underscore the dangers that remain so long as Trump is president. First, he may use his executive powers to extract revenge, settle scores and instill fear in political opponents – just as the Nixon White House did with the Internal Revenue Service. Second, he will continue to undermine the morale of prosecutors and investigators, causing them to leave, second-guess their actions or shape their work so as to avoid the president’s wrath.
And worst of all, Trump will undermine the public’s faith in entities that are supposed to be apolitical fact-finders and enforcers of the law, leading Americans to question the honesty and fairness of our government and criminal-justice system. That, in a nutshell, is how authoritarians infiltrate and abuse the administration of justice – unless the voters rise up to stop them.
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