Hu Yousong/Xinhua/eyevine/Redux
It hasn’t been two full weeks yet and Donald Trump already has redecorated the Justice Department with a baseball bat.
He’s not trying to hide it, either. When his acting attorney general canned the remaining prosecutors from Jack Smith’s team this week — Smith himself knew what was coming and quit before Trump took office — the dismissal letter got right to the point: “You played a significant role in prosecuting President Trump.” A political strategist or a bureaucratic lifer would’ve come up with some anodyne pretext. But for Trump, why bother? You crossed me, I won, you’re done. Give him points for candor.
The immediate casualties are the dozen or so career prosecutors who did their jobs, without any allegation of improper practice or other wrongdoing. Technically, the firings likely violated administrative requirements — notice and hearings and all that — and we could see lawsuits. But litigation will be costly, time-consuming, and unlikely to result in the full reinstatement of the dispatched prosecutors.
These were message firings. Imagine working at the Justice Department right now and discovering some investigative thread that might lead to the president, or somebody close to him, or some administration bigwig. What are your choices? Follow up and get fired — or look away and keep your job. Either way, the case goes nowhere.
Indeed, it seems we can write off the possibility of any meaningful criminal investigation of the president, or anyone in the administration’s power structure, by the Justice Department over the next several years. This will mark a notable departure from past presidential practice. In fact, every president in recent history has tolerated some level of criminal inquiry aimed at him or others in the administration. George H.W. Bush had the Iran-Contra investigation. He didn’t like it, and he ultimately issued pardons, but he didn’t fire anyone or shut the case down. Bill Clinton dealt with that pesky Ken Starr matter. The president fought hard for his survival, but nobody got canned. The Justice Department under George W. Bush examined the politically motivated firings of eight U.S. Attorneys and the outing by high-ranking officials of CIA operative Valerie Plame. Barack Obama allowed the Hillary Clinton email investigation to play out. Joe Biden tolerated the appointment of special counsel to investigate himself (for possession of classified documents) and his son (for gun and tax crimes).
Even during Trump’s first term, his Justice Department appointed Robert Mueller as special counsel. Trump raged nonstop about it and tried at times to make it go away, but the investigation ultimately played out to its natural end. Imagine the current Justice Department appointing a special counsel to look at the president or his campaign or his top advisers. Now imagine how quickly the prosecutor and everyone around him would get fired and the case would get squashed.
At nearly the exact moment of the purge of the Smith-adjacent prosecutors, the newly appointed interim U.S. Attorney for Washington, D.C., Ed Martin, launched a “special project” to investigate the prosecutions of hundreds of January 6 rioters. (If you’re wondering, no, “special project” is not a thing that exists within DOJ; he’s free to call it whatever made-up name he wants, but there’s no legal significance to the moniker.) Martin was a “Stop the Steal” organizer for Trump in 2020 and, you’ll be shocked to learn, has never before worked as a prosecutor.
The idea behind Martin’s inquest is that the Justice Department charged hundreds of January 6 rioters under a federal statute prohibiting obstruction of an official proceeding. Last summer, the U.S. Supreme Court ruled that that particular statute did not apply to the physical assault on the Capitol, which resulted in the dismissal of hundreds of charges. The ruling was based on nuanced, technical statutory interpretation, and was not decided along traditional ideological lines; Justice Ketanji Brown Jackson joined five conservatives in the majority, while Justice Amy Coney Barrett joined two liberals in dissent.
So what’s the crime here, or the potential crime, or the potentially potential-sorta-maybe crime committed by the lawyers who prosecuted the January 6 obstruction cases? Got me. Legal practitioners and scholars have long had a good-faith academic debate about exactly how broadly the obstruction law should apply. Now we’re going after the lawyers who argued the losing end of a complex issue of statutory interpretation? By that standard, DOJ should open investigations of Trump’s personal attorneys — some of whom will soon run the department — because they, too, argued plenty of technical legal points and eventually lost in the courts. (To be clear: No, DOJ, you should not do this. I’m making a rhetorical point.)
Much of how we process Trump’s recent moves turns on how we view DOJ itself. On one hand, we’ve got our Justice Department institutionalists. I certainly was raised that way within the department, and I’ve continued to advocate since then for prosecutorial independence and for presidents and other politicians to back off. Let DOJ be DOJ. And, yes, the Justice Department is different from other federal agencies, and yes, its day-to-day function should stand separate and apart from the president and Congress and politics writ large. It feels good to fly that flag.
But that’s probably a bit oversimplified. The Justice Department does not exist in a vacuum or on its own floaty cloud of righteousness outside of the rough business of government and politics. It’s part of our executive branch, as established in Article II of the Constitution, and the American public elected Trump to lead that branch. The preferences and longstanding practices of unelected, politically unaccountable career DOJ employees (like I once was) don’t take precedence, even if they’re rooted in good government principles.
Trump’s conduct is not okay, but it’s also not beyond or contrary to our constitutional allocation of powers. As much as it can feel cathartic to declare that Trump is “undermining our democracy” with his handling of the Justice Department, that’s not quite right. He’s having his way within it.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
