“All people who have faith in the rule of law in the United States should be incredibly alarmed by this story,” said Williams, who served as the DOJ’s deputy assistant attorney general for legislative affairs until 2017. “There is a long history of the White House staying out of individual investigations and prosecutions—and that is for a reason.”
Trump’s Yearning to Prosecute His Political Enemies
Trump reportedly sought earlier this year to prosecute Hillary Clinton and James Comey, which one former Justice Department official called “un-American.”
The president of the United States reportedly tried to use the full force of the country’s law-enforcement apparatus to prosecute his political enemies—and Justice Department veterans are calling it everything from “incredibly” alarming to “flat-out un-American.”
The disclosure by The New York Times on Tuesday that President Donald Trump had told the White House counsel he wanted the Justice Department to prosecute Hillary Clinton and former FBI Director James Comey offers a new window into the extent to which Trump perceives the law-enforcement community as his “personal entourage,” said Elliot Williams, a former high-ranking Justice Department official. The counsel, Don McGahn, who has since left the administration, told Trump he could not order an investigation, and produced a memo warning Trump that he could face impeachment for asking law-enforcement to prosecute Clinton and Comey, according to The Times.
Trump has not made a secret of his disdain for either Clinton or Comey. He turned “Lock her up” into a rallying cry among his supporters in 2016, and told Clinton during a debate that she “would be in jail” if he were elected president. In August, he accused the FBI of “ignoring” emails that Clinton sent on her private email server while she was secretary of state, and threatened to “get involved” if the DOJ didn’t get to “the bottom of all this corruption.” (After a year-long investigation, the FBI declined to recommend charges against Clinton in 2016.)
Trump has also called Comey an “untruthful slime ball” and accused him of “illegally” leaking “classified information.” (Comey wrote memos based on his interactions with Trump, which did not contain classified information, and gave them to his lawyer, Daniel Richman, to give to a reporter last year. Richman declined to comment.)
But while the Times report is not necessarily surprising, it is still shocking, former DOJ officials told me. “I don’t know of anyone who has ever thought that it would be remotely tolerable in any way for a president to instruct DOJ to prosecute his political opponents,” said David Kris, a founder of Culper Partners consulting firm who served as the assistant attorney general for the DOJ’s National Security Division until 2011. “That is just plain vanilla, out of bounds, un-American, wrong.” Vanita Gupta, who served as the acting head of the DOJ’s Civil Rights Division until January 2017, agreed. “It is, unfortunately, hard to be shocked anymore by the president and his utter disdain for the rule of law and the independence of the Justice Department,” she told me. “And yet we all need to be continued to be shocked by it.”
It is widely acknowledged that the president has the power to set broad law-enforcement priorities, such as prosecuting more drug cases or stepping up immigration enforcement. But getting involved with independent prosecutorial decisions, especially as they relate to a president’s enemies or to himself, is an extreme departure from institutional norms, experts say. “This case is not complicated at all,” Kris said. “It’s very simple. It is literally the law-school hypothetical that is used to illustrate what happens when things go completely off the rails.”
Trump likely would have faced significant pushback from DOJ officials if he’d issued such an order, said Harry Litman, who served as a deputy assistant attorney general in the 1990s and now teaches law at UCLA. “It is totally contrary to the DNA of the DOJ for the president, or anyone, to try to dictate the initiation of criminal charges in the absence of a full investigation of the facts and the law,” Litman told me. “If push actually came to shove and there were an order from the White House to prosecute, just about any DOJ official would resign first, I’m confident.” Matt Miller, who served as the Justice Department’s spokesman under President Barack Obama, noted that there wouldn’t even have been a “lawful way” for DOJ officials to carry out such an order. “You can’t even open an investigation without a predicate, let alone prosecute someone, and there is no predicate for opening new investigations into either Clinton or Comey,” Miller told me. “So in the first instance, I suspect people would have refused, and if ordered to do so anyway, they would have resigned and blown the whistle to Congress and the public.”
Law-enforcement officials have not been totally unwilling to investigate Trump’s political opponents, however. Earlier this year, former Attorney General Jeff Sessions asked Utah’s top federal prosecutor, John Huber, to look into allegations that the FBI under President Obama unlawfully surveilled a former Trump-campaign adviser. Huber was also tasked with investigating the so-called Uranium One deal—a focus of conservative media—and Clinton’s (unproven) ties to a Russian nuclear-energy firm. The U.S. attorney and the FBI in Arkansas also investigated allegations of corruption related to the Clinton Foundation, according to CNN, and Trump frequently asked Deputy Attorney General Rod Rosenstein and Sessions’s chief of staff, Matt Whitaker—now the acting attorney general—how those probes were progressing.
Post-Watergate, presidents were encouraged to maintain a healthy separation from the Justice Department in order to protect the independence of prosecutorial decisions—and themselves. But Trump began deviating from those norms just one week after he was inaugurated, when he asked Comey, who was at that point leading an investigation into Trump’s campaign team, for loyalty during a one-on-one dinner. Comey demurred. Three weeks later, Trump asked Comey to let his national-security adviser, Michael Flynn, who was also under FBI investigation, off the hook—again, Comey balked at the request. Three months later, Comey was fired. The reason? “This Russia thing,” Trump told NBC’s Lester Holt in a later interview.
Trump’s attempts to chip away at the independence of the Justice Department did not end there. He reportedly was on the brink of firing Special Counsel Robert Mueller last summer, and berated Sessions around the same time for recusing himself from the Russia probe. Trump has repeatedly lashed out at the career Justice Department and FBI employees, including Mueller, former Associate Deputy Attorney General Bruce Ohr, former Deputy FBI Director Andrew McCabe, the former FBI agent Peter Strzok, and the former FBI general counsel Jim Baker. And he recently forced out Sessions and appointed Whitaker, a White House ally, as acting attorney general—and, in effect, as Mueller’s new boss.
Whitaker has repeatedly criticized the Mueller investigation, at one point even musing about how a Sessions replacement could cripple the probe by cutting its funding. An op-ed he wrote in July 2016, in which he described his belief that Clinton should have been indicted, has only heightened legal experts’ concerns over Trump’s impulses to prosecute his rivals. “I don’t think anyone is under any illusions as to why Trump chose Whitaker for this position,” Gupta said. “If people don’t think we are at a constitutional red line at this point, then that, in and of itself, is troubling. The erosion of our democratic norms is profoundly disturbing.”