12.14.17

Time To Root Out Political Interference With The DOJ

President Trump was at it again recently, taking to Twitter to besmirch the U.S. Department of Justice, and doubling down on his demand for a DOJ investigation into Hillary Clinton’s emails. “No justice!” Trump complained, claiming the reputation of the FBI was “in Tatters – worst in History!” This latest outburst comes on the heels of his comments in a radio appearancelast month, lamenting: “The saddest thing is that because I'm the President of the United States, I am not supposed to be involved with the Justice Department ... Why aren't they going after Hillary Clinton ... ?”

It’s not sad, Mr. President, it is the rule of law. Presidents are not supposed to supervise, initiate or interfere with law enforcement investigations or prosecutions. Not of their political opponents. Not of anyone. That’s the way banana republics behave; not the government of the United States of America.

To prevent even the appearance of undue political influence, Republican and Democratic administrations alike have for decades honored written policies limiting White House contacts with the Justice Department and other law enforcement agencies. Even the Trump White House has one, dictating that, with few exceptions, the White House may only communicate with the DOJ on matters “that do not relate to a particular contemplated or pending investigation or case.”

Nevertheless, we are seeing troubling signs that these principles are being circumvented by tweet and other forms of pressure. Just days after Trump made those comments about “going after Hillary Clinton,” Attorney General Jeff Sessions signaled that he’d heard Trump’s frustrations loud and clear. In a letter to the House Judiciary Committee, Sessions confirmed that the Justice Department would evaluate a special counsel to investigate allegations against Secretary Clinton. Although Sessions appeared to backtrack in testimony before the committee, insisting that he had “not been influenced and would not be improperly influenced” by the president, there is cause for doubt. With Sessions having already been berated by the president for failing to shield him from the investigation into Russian election interference, and amid reports emanating from the White House that his days at the Justice Department were numbered, our attorney general is under considerable pressure.

The Department of Justice is protected from this kind of pressure by long-held standards designed to ensure independence and integrity, but the president is a human firehose of political controversy, lashing about and smashing into the rules and norms of the presidency. That makes it important to remind ourselves why the DOJ's rules and norms exist in the first place. They’ve been bent close to breaking before, and we can learn valuable lessons from our not-so-distant past.

Many will recall the “torture memos” drafted by George W. Bush administration lawyers in the Justice Department’s prestigious Office of Legal Counsel. The flawed memos — so flawed that the department was later forced to disavow them — gave legal cover for the White House’s authorization of waterboarding, sleep deprivation, and other so-called “enhanced interrogation techniques.”

In 2006, the DOJ ordered the unprecedented midterm dismissal of nine U.S. attorneys. An internal probe concluded that the dismissals were politically motivated and improper. The investigation remained incomplete, as the White House withheld critical documents and Attorney General Michael Mukasey refused to insist on the relevant documents, letting the investigation die.

At the Justice Department’s Civil Rights Division, Bradley Schlozman, a political appointee, illegally politicized hiring and firing decisions. Emails revealed his campaign to kick out “all those crazy libs” and replace them with “real Americans” and “right-thinking Americans” who could “be trusted.”

With Trump and Sessions, warning flags are flying over the DOJ again. What was the rationale for the sudden wave of U.S. attorney firings earlier this year? What explains the president’s unusual personal interviews of candidates for U.S. attorney in districts where Trump business interests are concentrated? Is the department trying to punish CNN through antitrust enforcement for that network’s coverage of the president? Why is the department cooperating with a sham voter fraud commission, when the myth of “voter fraud” might be the actual fraud? Was the release to reporters of department investigators’ text messages, which are the subject of an ongoing investigation, meant to undermine confidence in the special counsel’s team? Is the Justice Department reading straight from Trump’s political playbook?

Through impulsive tweets and public comments, and through actions like the firing of FBI Director James Comey and the pardon of Sheriff Joe Arpaio, President Trump makes no secret of his highly politicized law enforcement agenda. This presidential pressure can put everything the DOJ does under a cloud.

Along with several colleagues on the Senate Judiciary Committee, I sent letters to Deputy Attorney General Rod Rosenstein, Associate Attorney General Rachel Brand and FBI Director Christopher Wray asking what they are doing to safeguard the department’s operations and prosecutions from Oval Office influence. I hope they agree the department must not develop a reputation as making litigation decisions based on presidential tweets.

Congress, and indeed the Justice Department itself — through the Office of Professional Responsibility and the independent Office of Inspector General — have the tools to investigate political interference with our nation’s law enforcement, and protect the department from abuse. It’s time to use them.


By:  Sheldon Whitehouse
Source: Law360