MAYDAY AT DOJ

Trump’s vicious and dishonest campaign threatens to gut the entire Department

The Department of Justice is in the gravest crisis of its storied 150+ year history, and whether it will emerge with anything like its previous institutional strength and integrity is far from clear.

Twice before, the Department has faced a crisis from within. Both times, presidents sought to corrupt its mission for self-serving ends. Both times, political appointees of the Department—as it happened, Republicans—stepped up, putting the DOJ’s institutional interests ahead of the personal welfare of the president.

The first episode was the famed Saturday Night Massacre of 1974 during the Watergate investigation, when President Richard Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Archibald Cox. Both Richardson and his deputy, William Ruckelshaus, refused the president’s order and resigned. (It was Robert Bork, the then Solicitor General, who ultimately carried out the order, with the acquiescence of the other two.) The refusals led more or less directly to Nixon’s resignation. It was a defining moment for the Department, still invoked today as one of its finest hours.

The second episode occurred in 2021, at the end of Donald Trump’s first administration. Trump sought to strongarm the Department into writing a false letter to Georgia election officials to further the plot to steal the election. In a dramatic Oval Office showdown, the entire Department leadership, led by acting Attorney General Jeff Rosen, told Trump that they would all resign if he installed Jeff Clark as a puppet AG and went ahead with his plans. Trump relented, and again the Department reaffirmed its institutional strength.

Both of those crises were events of high drama when the continued institutional integrity of the Department of Justice was on the line.

The current crisis has not yet reached a white-hot moment of showdown, and that may never happen. That is because, stung by his failed shakedown the last time around, Trump already has stacked the deck by installing lackeys to issue the orders. For that reason and others, including the servile see-no-evil Republicans in Congress, the institutional attack he has initiated is considerably more menacing, and the outcome considerably more in doubt.

Most importantly, there is no DOJ appointee in place to play the role of Richardson or Rosen by standing up for the Constitution above the president. It was the Trump hand-picked acting Attorney General, James McHenry, who temporarily led a Justice Department unit dealing with immigration during Trump’s first term, who carried out Trump’s order to fire the 12 career prosecutors who had worked for Jack Smith.

An even more breathtaking example here is Ed Martin, the just-appointed acting United States Attorney for the District of Columbia, who has ordered up an ill-defined “investigation” into some of the conduct of the January 6 prosecutions, demanding a “comprehensive and assertive” interim report by Friday—a laughably short turnaround that precludes any sort of thorough analysis. And he ordered the top officials in the office to oversee the investigation of their colleagues, adding a graceless insult to the injury of the project itself. This rub-their-noses-in-it move is a repeating trope of the hostile takeover of the DOJ we are seeing unfold.

Ed Martin is a charter Stop-the-Steal election denier, who represented Proud Boys and other rioters and served on the board of the “Patriot Freedom Project,” a group dedicated to raising money to support the marauders. He attended the January 6 rally and tweeted that there was “nothing out of hand” about what happened at the Capitol that day. He has no business being involved in any DOJ investigation involving the offenders.

Trump is no great strategic thinker. But he has a deft instinct for sowing chaos, which he does by bundling together a plethora of outrageous acts at once. That has been his general MO for his first 10 days in office, and his specific approach to DOJ. It’s all part of the blueprint of Project 2025, which Trump disavowed during the campaign but has clearly become his Administration’s operator’s manual.

With so many bombs exploding at once, it’s very hard for institutionalists to effectively make the case or even explain to the American people why Trump’s conduct threatens constitutional rule. Moreover, there is the additional challenge that much of the country has been conditioned to see Trump’s reprisals as tit for tat for the Department’s prosecutions of him.

Readers of this Substack know that my organizing approach to Trump’s treacheries is to start with the lie. It’s a sort of iron law of Trump knavery that the last 10 days have repeatedly illustrated: there’s always a lie at the core.

Here, the core lie is the claim that the prosecutions of Trump and his gang of constitutional hoodlums were politically motivated and not meritorious. It’s clear that embracing the falsehood is a required article of faith for anyone in the administration, including AG nominee Pam Bondi, who advanced it, repeatedly and casually, in her testimony, along with general diatribes against the Department for “weaponizing” prosecutions.

But the claim is a vicious slander, and one that goes to the heart of the department’s identity. Its proponents’ sole basis for making it is that Trump was the defendant. The fact—the plain fact that we must insist on again and again—is that career DOJ lawyers are highly professional, scrupulous, and dedicated to the public good; and they were all those things while working under Jack Smith. And in the very rare exceptions when they are not, there is a supervisory and disciplinary structure to come down hard on them. The Department does not tolerate much less countenance politicized prosecutions, which directly contradict its operating credo of doing justice without fear or favor. The image of a systematically corrupt Department of Justice from line prosecutors to the attorney general always has been a dark Trump delusion.

For all DOJ alums who know how the Department actually operates, it’s galling to have to make this essential point over the raucous shouts of the Trump chorus. There is a way to prove that in Trump’s cases. It’s just that, as with rebuttals of so many of Trump’s irresponsible diatribes, it requires meticulous explanation and a fair hearing, both of which have become very scarce commodities under Trump’s malign influence, along with that of the right-wing media ecosystem that parrots every lie.

Prosecutors habitually invoke “the facts and the law” as the sole guides to their conduct. It’s such a bland, widespread mantra that it tends to go in one ear and out the other. But in fact, it’s the north star of prosecution without fear or favor.

The simple, indispensable point is that the charges against Donald Trump and his co-conspirators were grounded securely in the facts and the serious violations of federal law that they established. And of course, Trump and company have cited no facts or law in support of their claim. The sole point of “proof” is that Trump was the defendant, and the implicit argument is that a Democratic administration that prosecutes a prominent Republican must be in the tank.

Jack Smith rebutted these charges while he still could at the end of his Volume One report to Merrick Garland. He did so with the simple avowal that the dismissal of the charges in no way turns on “the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution – all of which the Office stands fully behind.”

A final contrasting feature of this current crisis is that, in contrast to the others that necessarily played out in a matter of days or hours, this one has no clear showdown point. Indeed, while the firings were meant to settle scores with career staff for doing their jobs, their intended effect is no less to chill the rest of the Department to frozen nitrogen levels. Department attorneys know today that their jobs are threatened if they pursue investigations that possibly undermine Trump’s personal interests. The goal is pernicious: to rot the Department culture from the inside and convert it to an instrument of personal service to the President.

The crisis will be unfolding for the next several months, as Trump, Martin, and company (presumably to include Bondi) pursue their relentless campaigns of reprisal. I will have much more to write, but it’s critical to keep foremost in mind that this is a Manichean battle between forces of good and forces of evil. One side is correct and righteous; the other is lying and wicked. If history, or political culture, or congressional courage, or all of the above, can’t suffice to deliver an eventual repudiation of Trump’s scurrilous claims, the Department will have been permanently crippled.

It is on all of us to keep up the volume on this issue. Today’s debacle with the withdrawal of the over-aggressive OMB order is a useful reminder that Trump will blunder, and he has only the thinnest of margins in Congress to work. An important counterblow, one that all of us can strike, is to insist on the lie at the heart of the DOJ takeover and never to give ground. The day will come when the episode, like the January 6 insurrection itself, will be broadly understood to have been driven by the self-serving lies of a petty would-be autocrat. But for the moment, the horizon is stormy, and the endpoint is difficult to discern.

Talk to you later.