The DOJ held onto its political independence in Trump’s first year. Is that changing?
A series of recent news stories raise questions about how much longer the main US federal law enforcement bodies can hold out against Trump’s authoritarian instincts when it comes to rule of law.
Just last week, we learned both that the Justice Department was reexamining the Hillary Clinton email case, and that the FBI had revived a dormant investigation into the Clinton Foundation. The Trump administration installed its own appointees to several important US attorney posts without getting the Senate’s approval, and has recently sidelined several career officials in the FBI or DOJ who Trump dislikes.
On top of that, two Republican senators referred the author of the “Steele dossier,” which claimed collusion between Trump and Russia, to the Justice Department for potential criminal prosecution.
It’s possible that there are reasonable explanations for each of these moves. For instance, the new investigations and the criminal referral could be based on legitimate evidence, or they could end up not resulting in any action at all. Perhaps Trump’s new appointees could prove to be defenders of the Justice Department’s independence.
But when viewed in the context of Trump’s many public demands that his political and even bureaucratic opponents be investigated and charged with crimes — and his already-known efforts to interfere with Justice Department investigations — all this makes for a disturbing pattern.
“Many people in our Country are asking what the ‘Justice’ Department” is going to do about “Crooked Hillary,” Trump tweeted in December. The department “must finally act” against former FBI Director James Comey and former Clinton aide Huma Abedin, he tweeted last week. And in November, he asserted that the Democratic Party had violated “campaign finance laws and money laundering” during its 2016 primary, and asked, “Where is our Justice Department?”
Throughout most of Donald Trump’s first year in office, his efforts to bend the law enforcement agencies of the United States to his will seemed to fail — seemingly demonstrating the resilience of American institutions against a president with authoritarian instincts. When he fired Comey, he only ended up with special counsel Robert Mueller. His repeated public demands for the FBI and Justice Department to investigate his political opponents seemed to be falling on deaf ears.
But the big question in the coming year is whether Trump will succeed in demolishing the norm of Justice Department independence and at contorting the rule of law to better advance his own political interests. Here are five recent stories that show troubling signs on that front.
1) The Justice Department is looking into Hillary Clinton’s emails again
According to a report by the Daily Beast’s Betsy Woodruff, DOJ officials have launched an effort to “gather new details on how Clinton and her aides handled classified material” while she was secretary of State. They are reexamining both the facts of the email case, and investigative decisions made by officials during Obama’s administration.
This is worrying because the case was closed, and because Trump has repeatedly demanded, in tweets and public statements, that the Justice Department investigate Clinton (and criticized the decision not to prosecute Clinton on the email issue in particular). The department has a tradition and norm of making its investigative and prosecutorial decisions without presidential interference, particularly in highly charged political cases. Additionally, the Justice Department’s inspector general was already reviewing the FBI’s handling of the Clinton email case.
Now, former Clinton campaign spokesperson (and Justice Department spokesperson) Brian Fallon isn’t ready to panic just yet. Fallon told Woodruff that he thinks this is probably just an effort “to give Trump and his allies something to talk about and point to, and something to give Fox News to devote segments to,” rather than a serious effort aimed at prosecution. Still, he warns that even doing that is “extremely dangerous” for the traditionally independent Justice Department.
2) The FBI is investigating the Clinton Foundation again
It’s not just emails. The FBI has also revived a dormant probe into the Clinton Foundation, according to reports last week by the Hill’s John Solomon and the Washington Post’s Matt Zapotosky and Devlin Barrett.
Solomon writes that agents have interviewed at least one witness in the past month, with more activity expected soon. He adds that, per one source, “the probe is examining whether the Clintons promised or performed any policy favors in return for largesse to their charitable efforts or whether donors made commitments of donations in hopes of securing government outcomes.”
Now, again, this isn’t an investigation that the Trump administration conjured entirely from scratch. The Wall Street Journal reported last year that the FBI had investigated the Clinton Foundation during the presidential campaign. But, per the Journal, there was a disagreement between some field agents, who wanted to move forward with more aggressive investigative measures, and senior Justice officials, who “repeatedly voiced skepticism of the strength of the evidence.”
So, the question is, does the FBI have solid evidence that suggests wrongdoing? Or is this new push aimed at pleasing a president who has repeatedly demanded Clinton be investigated?
3) The Trump administration made temporary appointments of key US attorneys — skirting the Senate confirmation process
Nearly 10 months ago, President Trump suddenly asked dozens of US attorneys who’d been appointed during the Obama administration to resign, even though he didn’t have their replacements ready.
Since then, he’s failed to get replacements for many of them confirmed by the Senate — in many cases, he didn’t even submit nominations. As a result, career Justice Department officials (and not Trump appointees) have been at the helm of many of these US attorneys’ offices.
But last week, Attorney General Jeff Sessions put a stop to that. Per CNN’s Laura Jarrett, Sessions has filled 10 US attorneys’ offices on an interim basis with his own outsider picks, even though they haven’t been confirmed by the Senate.
These include US attorneys’ offices in key jurisdictions where the Trump and Kushner family businesses are located — the Eastern District of New York, New Jersey, and the Southern District of New York. (That latter post was helmed by the aggressive prosecutor Preet Bharara before Trump fired him; Sessions has filled it with Geoffrey Berman, who happens to be Rudy Giuliani’s law partner, and who Trump interviewed personally for the post last year.)
This isn’t a permanent problem because by law these interim appointees can only serve for 120 days without Senate confirmation. Still, Trump and Sessions have ensured that, for the next few months at least, they’ll have their people in important federal law enforcement jobs, without Senate scrutiny first. Doing that is legal, but given the president’s evident desire to bend DOJ to his will, it’s troubling.
4) Two Republican senators referred the “Steele dossier” author for potential criminal prosecution
Two Republican senators made Congress’s first criminal referral in the matter of Russian interference with the 2016 election last week. But it wasn’t about anyone working with Trump — it was about someone investigating Trump.
Sens. Chuck Grassley (R-IA) and Lindsey Graham (R-SC) wrote that they believed Christopher Steele, the former British spy hired to look into Trump’s Russia ties and author of the “Steele dossier,” had lied about his contacts with reporters about to federal authorities. So they recommended that the Justice Department look into false statements charges against Steele. (It is entirely up to the Justice Department whether to pursue the matter.)
Much of the information at issue here is classified or related to the unfolding investigation, so it’s tough to evaluate Grassley and Graham’s charge. But it certainly seems to be part of the broader conservative effort to strike back against the Russia probe, which in recent months has focused increasingly on the dossier (which we now know was ultimately funded by Hillary Clinton’s campaign) and the FBI’s use of it.
Now, this move isn’t Trump’s own doing. But it’s clearly coming from his allies. (Grassley has strongly backed the president, while Graham has converted from a strong critic to a booster of Trump’s in recent months.) And it sends an unmistakable message about whose alleged wrongdoings top congressional Republicans are most concerned about — and what they’d like the Justice Department to do.
5) The top DOJ and FBI officials Republicans have targeted for criticism are leaving or being sidelined
Finally, in recent months, Trump and his allies’ general criticism of the “deep state” has increasingly focused on particular Justice Department or FBI officials they claim have been biased against the president. And this criticism may finally be getting results.
Most notably, there’s Deputy FBI Director Andrew McCabe. Last year, Trump publicly disparaged McCabe, and claimed he’d tried to protect Clinton’s interests. McCabe’s wife was a Democratic candidate for Virginia’s state Senate in 2015, and Gov. Terry McAuliffe (D), a longtime Clinton ally, helped raise hundreds of thousands of dollars for her campaign. She ended up losing the race before McCabe was given supervisory authority over the Clinton email investigation, but word of the fundraising leaked into the press last year, and conservatives questioned McCabe’s impartiality.
McCabe remained in his post, serving as acting FBI director after Trump fired James Comey, and returning to his role as deputy once Trump’s pick Christopher Wray was confirmed to replace Comey. But the criticism — from Trump, congressional Republicans, and conservative media — continued. Finally, word leaked out in December that McCabe had decided he’d retire once his pension has fully vested this March.
It doesn’t stop there. Justice Department official Bruce Ohr was demoted in December, reportedly because he’d met with Chistopher Steele. And the FBI’s longtime top lawyer, James Baker, was also reassigned that same month.
Again, there were some potential justifications. Ohr’s contact with Steele had come under scrutiny because his wife worked for Fusion GPS, the firm that was paid for the Steele dossier (at the behest of Clinton’s campaign). The FBI personnel changes can be explained as a new director wanting to select his own top staffers — though of course, we only have a new FBI director because Trump fired the old one.
And again, it is possible that these posts could be filled by officials who will prize law enforcement agencies’ independence and won’t act simply to protect President Trump. But it remains to be seen whether that will happen.
Overall, we’re still a long way from the Justice Department truly being corrupted and made to serve only the political whims of the president — protecting his friends and going after his enemies. That process would have to start somewhere, however. Hopefully, we won’t later look back and conclude that this is where it began.