Yeomans Work

Trump Threatens the Rule of Law

July 21, 2017

In his stunning interview with three New York Times reporters, President Trump jumbled history, showed the attention span and self-absorption of a toddler, and made demonstrably false statements. None of that was surprising.

Perhaps most disturbingly, however, the interview revealed a distorted view of the relationship between the Department of Justice and the presidency. In doing so, the president foreshadowed the possibility of disturbing events that may be on the horizon. He undermined his Attorney General, Jeff Sessions, by saying that he never would have selected him if he knew he would recuse himself from the Russia investigation. He disparaged his Deputy Attorney General as a guy from Baltimore, where, he said, there are very few Republicans. He returned to his firing of former FBI Director Jim Comey, accusing him of trying to exercise leverage over Trump by showing him the secret dossier purporting to reveal the basis for Russian influence over him. He appeared to issue a warning to Independent Counsel Robert Mueller that extending the Russia investigation to look into Trump’s business affairs would exceed his mandate and cross a red line.

As always, the central question in trying to make sense of Trump is whether there is any strategic thinking behind his words or he simply resembles an out of control Magic 8 ball, unthinkingly spouting whatever collection of words floats to the surface. Either way, the interview can be read as laying the groundwork for the departure – through firing or resignation – of Sessions and the firing of Mueller. Each would have profound consequences.

Reports have surfaced that Trump has expressed his displeasure directly to Sessions, who offered to resign weeks ago. Trump’s public airing of his views makes Sessions’s situation even less tenable. He knows that he does not have the confidence of the president and now the world knows it. This expression of lapsed confidence is especially important since Sessions has yet to fill the majority of political jobs at the Department of Justice, including U.S. Attorney positions. Trump’s statement will make it harder to attract people and make confirmation hearings more difficult for those who are nominated. Sessions has not helped his own cause. His failure to respond to Trump with a strong statement endorsing the independence of the Department of Justice leaves him in the position of a weakened supplicant.

What would Sessions’s departure mean for the Russia investigation? Because of Sessions’s recusal, Rod Rosenstein has exercised authority over the investigation. As Trump has made clear, his pick to replace Sessions would not have a recusal issue and could take authority over Mueller and his investigation back from Rosenstein. This prospect, obviously, would raise substantial issues in the confirmation process and Senators might be able to extract guarantees of noninterference from the nominee. Even so, a Trump-appointed Attorney General would be far more likely to obey an instruction from Trump to fire Mueller, allowing Trump to avoid the series of resignations that Nixon faced when he sought to fire Archibald Cox.

Trump’s statements about Mueller are particularly ominous. In the same interview, he faulted Barack Obama for failing to respond sufficiently when Syrian president Assad crossed the red line by using poison gas against his own citizens. Trump made it clear that he takes red lines seriously. He stated that any inquiry into his financial affairs that was not directly related to Russia would exceed Mueller’s mandate. Reports surfaced today that Mueller’s investigation is looking into Trump’s financial dealings going back at least as far as 2008.

Trump also has expressed repeatedly his objections to what he perceives as conflicts of interest in Mueller’s shop, notably that a number of Mueller’s hires have contributed to Democratic candidates. In the New York Times interview, Trump also harped on the fact that Deputy FBI Director Andrew McCabe’s wife ran for office as a Democrat and received substantial funding from Democratic sources. Trump cannot comprehend that Department of Justice employees, including attorneys, FBI agents and managers check their politics at the door. It is a central tenet and measure of the professionalism and independence of the Department of Justice that investigatory and prosecutorial decisions must be made without political favor. Trump’s limited understanding of government and the rule of law does not allow him to grasp this essential element of our system. Trump’s world is driven by control, loyalty, deals, and favors. The relationship between the president and the Department of Justice is not and must not be.

The interview makes clear that Mueller’s firing is a live possibility. If Trump is cornered or if his children are in inescapable jeopardy, he may well fire Mueller as a desperate act. Whether it will be his last desperate act as president will be up to the hitherto spineless Republican members of Congress, who have repeatedly turned away in silence after each Trump outrage.

The Department of Justice’s Office of Legal Counsel has repeatedly taken the position that the Constitution does not permit the criminal prosecution of a sitting president. While there is scholarly debate on that point, Mueller will not disregard that longstanding policy. While he may indict Trump family and associates, the sanction against Trump must come through the political process of impeachment. The evidence Mueller is accumulating of criminal transgressions may inform that process, but Trump will remain president unless he resigns or a majority of the House of Representatives and two-thirds of the Senate decide to remove him. The firing of Mueller would, in the starkest terms, test the commitment of Republicans in Congress to the Constitution and the rule of law.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.