The Department of Justice faces a reckoning. How it and President Biden face it has serious consequences for the future of our democracy. At its heart is the extent of executive power among three co-equal branches of government. DOJ’s decision to defend President Trump in a civil defamation case according to a filing late last night is one of many worrisome actions
President Trump was a wannabe autocrat. Attorney General Barr believed in unitary executive authority and defended Trump’s actions on multiple fronts, drawing criticism that he had politicized the agency.
Barr’s decisions included:
· supporting Trump’s redirection of Pentagon funding to build the border wall over Congress’ objections;
· misrepresenting the Mueller report where Barr claimed that there was insufficient evidence to establish that Trump had obstructed justice into the investigation of Russian interference in the 2016 election;
· withholding a whistleblower report into Trump’s attempt to coerce Ukraine into digging up dirt of his 2020 political rival Joe Biden;
· supporting the use of force against peaceful demonstrators in Lafayette Square;
· interceding on behalf of Trump’s chums who had been convicted of crimes or faced criminal charges, including Gen. Michael Flynn, Roger Stone and Paul Manafort.
In his letter of resignation, Barr defended the President as a stalwart against relentless attacks against him and his allies. Some argue that Barr’s view of unitary executive authority meant defending the President against such attacks. Critics note that defending Trump’s actions coddled his worst impulses.
Among the principles at stake are these. First, the mission of the Department of Justice is to “ensure that fair and impartial administration of justice for all Americans.” Selectively defending the President’s allies, over the objections of career prosecutors, does not give the appearance of being fair and impartial.
Second, DOJ Is not the President’s lawyer, but the lawyer for the United States. Defending crimes committed by the President just because he is the President guts the value that no person is above the law.
Third, DOJ is an agency within an executive branch, a branch with co-equal power with the legislative and judicial branches of government. Defending a President’s usurpation of Congress’ power of the purse disregards their legitimate interests.
The balance of power among the three branches of government is out-of-whack, allowing a President inclined to abuse power to do so. There are ways to restore equilibrium — the checks and balances that promote justice and democracy. Recent actions by DOJ, however, could leave in place the principles of unitary executive authority that have brought us to this critical juncture.
For example, DOJ argued in federal court recently that it should not be forced to release the full Office of Legal Counsel (OLC) memo that provided the legal basis for Barr’s assertion that the Mueller investigationinto Russian interference did not find that the Trump campaign had colluded with Russia in the 2016 elections or that Trump had obstructed justice during the investigation.
On the one hand, there is good reason to protect OLC memos from public release so that attorneys may provide candid legal advice to the Attorney General without fear of Monday morning quarterbacking. On the other hand, lawyers cannot provide unlawful guidance and then be shielded by claiming privilege. OLC memos have been used to justify unlawful torture. Are they again providing cover for an unlawful legal determination in relation to Russian interference and Trump’s role? The time has come to change the rules governing OLC legal opinions to avoid extralegal maneuvers.
In another matter, DOJ argued in court that the federal agents should not be held accountable for tear-gassing and shooting peaceful demonstrators in front of the White House so that Mr. Trump could get a photo-op holding a upside down bible in front of St. John’s Church. Attorney General Barr blessed use of police brutality to break up those protesting police brutality.
Again, there is a sound principle at stake. Federal agents must take action to protect the President and should not be held liable for carrying out their duties, even if someone gets inadvertently and regrettably injured in the process.
On the other hand, federal agents cannot deny a person’s civil rights. Taking away with force a person’s First Amendment rights to peaceful assembly and free speech are clear breaches of protected civil rights. In addition, federal agents had a duty to disobey an order that should have been seen as an unlawful. DOJ should settle the cases challenging the Lafayette Square incident and develop clear rules to prevent a recurrence.
In other matters, Barr intervened on behalf of Trump allies who were convicted of crimes. DOJ dropped the criminal charges against Lt. Gen. Michael Flynn even though Flynn had pleaded guilty to lying to the FBI about his contacts with Russia. DOJ recommended a lighter sentence for Roger Stone hours after Trump tweeted his anger at the original sentencing recommendation. Trump ultimately pardoned his ally and mega-donor.
Again, DOJ asserted sound principles warranting the changed positions. A review suggested Flynn should have never been charged in the first place. DOJ said its original sentencing recommendation in Stone’s case, upon further review, was inconsistent with recommendations in other cases. Those findings may or may not be backed up factually. The appearance of impropriety, though, is significant. The failure of accountability only emboldens bad actors as Lt. Gen. Flynn in the past week suggested there should be a Myanmar-style military coup in the U.S. against the Biden administration.
Then last night. The Department of Justice filed a brief in support of President Trump’s assertion that he cannot be sued for defamation for saying E. Jean Carroll lied about his assaulting her in a Bergdorf Goodman’s bathroom. There is a sound principle that President’s cannot be sued for carrying out their official duties. That principle though enables Trump and future Presidents to lie and defame with impunity, from the loudest bully pulpit in the world, on consequential matters such as whether Trump committed rape before holding office. DOJ should withdraw its appeal and allow Mr. Trump to pursue his own defense without DOJ’s imprimatur.
There are other actions that should be taken to rebalance the commitment to fair and impartial justice for all Americans. Congress should pass laws ensuring the independence of DOJ from Presidential political interference. It should also revise rules governing pardons so that a President’s friends do not receive a get out of jail free card, especially when their criminal activity also implicates the President. To the extent that Congress does not act, President Biden should issue an executive order, and DOJ should implement regulations to achieve the same ends.
President Biden said on Memorial Day, “Democracy thrives when the infrastructure of democracy is strong.” If democracy’s infrastructure is not strengthened and the guardrails bolted down, the next Trump will obliterate them.