Published by The Lawfare Institute
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As the first year of Donald Trump’s presidency ends, his Chief of Staff affirms that his administration is not meant to be like any that came before it. “He very seldom asks how other presidents did this,” John Kelly told the New York Times. He is particularly uninterested in following the generally accepted governing norms, those unwritten or informal rules that, as Jack Goldsmith has written, presidents “typically” follow. To the contrary, as Kelly makes clear: “The norms and conventions are exactly what he ran against and, in his view, are why we’re in the fix we’re in.”
One of the norms most clearly at risk is that which serves to safeguard the independence of federal law enforcement. “I have the absolute right to do what I want with the Justice Department,” Trump has told the New York Times. His lawyers have added a little detail, positing that no one may question the president’s motives in running the department. When he fires senior department officials, he may be acting to protect himself, or for political reasons, or both: So be it.
Is Trump’ presidency reshaping this norm, with lasting consequences, or is Jack Goldsmith right to believe that this and other norms will prove resilient, “snapping back” into place when this president leaves office, perhaps even “enhanced”? There is good reason to be less optimistic about the survival prospects of the independence norm as it emerged in strongest form after Watergate.
In an upcoming and comprehensive examination of norms in the Harvard Law Review, Daphna Renan stresses that norms are “provisional.” Changes in norms over time reflect the “changing nature of the constitutional order itself.” As the country’s politics undergo major change, so do its norms. In an era defined by what Justice Elena Kagan termed “presidential administration,” diminished respect for institutions and sharply polarized political competition, norms once taken largely for granted come under pressure. Within this context, Trump’s frontal challenge to norms could reverberate well after his presidency ends. In dismissing the norm of independence, Trump is not exactly pushing on an open door— but it is not shut tightly against him either.
Presidents routinely chafe at cabinet department claims to independent decisionmaking. Presidents run their administrations out of the White House—with cabinet officials often involved on the major issues only tangentially, or for show. Presidents answer for how “their” administrations perform. The buck stops with them, and it follows that they would want the authority that comes with that accountability. The West Wing also dislikes surprises out of the departments that complicate its management of the 24-hour news cycle and which lead the press to turn first to the White House for comment.
“Independence” liberally bestowed on the Department of Justice frustrates these objectives, which modern presidents largely take to be an imperative, of more executive control. So there is no hard-and-fast standard of independence. The question is one of application.
Imagine the extremes of a continuum: on one side, the Nixon administration’s criminal manipulation of the Justice Department, and on the other, pure departmental independence from political control or policy direction. In between are a host of hard cases and open questions. A president has to weigh the policy or administrative value of direct intercession with the department— whether to achieve policy goals or “faithfully execute the law”—against the political costs of being charged with corruptly compromising its independence.
A relatively minor but still instructive example of the complexities in the administration of this norm is the Obama Justice Department’s prosecution of former Senator and presidential candidate John Edwards for violations of campaign finance law. Edwards was charged for collaborating with political supporters to make arrangements, which they financed, to keep an affair secret. The theory was decidedly novel. Few experts in campaign finance thought it had merit, and it does not go too far to say that many judged it complete nonsense. The jury deadlocked on five charges and acquitted Edwards of the sixth. It was an embarrassment to the department and a blow to its credibility like any loss of this magnitude in a high-profile case. It was not a good day for any who had hoped that decrepit campaign finance laws could be bolstered through credible criminal law enforcement.
The White House did not intervene, and could not have done so, in the decision of whether to bring the case. Nine times out of ten, this is precisely the right procedure. (In this case, moreover, the U.S. attorney in charge of the prosecution was a Republican holdover—and it would have been even more unimaginable that the administration would have departed from the norm of non-interference for the benefit of a Democrat against the charging recommendation of an official associated with the opposing party.)
I was White House counsel at the time and, having a background in campaign finance law, I shared the general view that this case was a dud and its prosecution was counterproductive. But I was not a party to the deliberations over whether to bring the case, and even if I had heard word of what was coming, I would never have recommended to the president or his chief of staff that I pick up the phone and urge the department to think again. Doing so would have put the White House in danger of seeming to undermine departmental “independence.”
But was this a clearly sound application of the norm, where the theory of the case was dubious, the prospects for success at best uncertain, and failure would blacken the department’s eyes and add to the woes of campaign finance enforcement? Maybe this is a one-off, not worth worrying too much about. But one-offs may be more consequential than the run-of-the-mill, routine charging decision.
In the Edwards case, little good came from honoring the norm of departmental independence and allowing the prosecution to proceed. But the norm prevailed, as it likely would have in a number of prior administrations, consistent with the post-Watergate trend toward more rather than less Justice Department independence. There are costs to applying the norm, as this episode shows, but those costs are often necessary for the norm to survive. In the end, striking the right balance in hard cases between presidential accountability and DOJ independence depends on the careful thought and good faith of responsible government officials.
Enter Donald Trump. This president brings into his administration an instrumental view of the law that, he believes, served him in his business career. The government lawyers are as his lawyers, much as he is fond of referring to the senior uniformed military leadership as “my generals.” An FBI director who declined to pledge his personal loyalty to Trump lost his job. In the same New York Times interview in which he declared his “absolute” control over DOJ, Trump rated his own attorney general low on the loyalty scale. He believes that a truly loyal attorney general would not have recused himself from the Russia investigation and would not have hesitated to fashion what the president considers an overdue prosecution of Hillary Clinton. As his chief of staff assured the Times, this president sees existing norms as part of the problem that he “alone” can fix.
Moreover, Trump has an audience—perhaps not a majority but hardly negligible in number—for what he is peddling on this subject. In his attacks on norms, he can rely on a bitterly polarized politics in which partisans go to war as if each battle will be the last and no prisoners may be taken. This is not just politics by other means but also politics in which ends justifies means, and a position taken on departmental independence is just one in a series of political calculations. It is also much easier for partisans, ideologues and opportunists to flout the norm or reorder it to their taste at a time of sharply diminished respect for institutions.
Stated differently, this president and his allies have worked to convince the public that the Department of Justice is an organ of the “deep state.” They portray the norm of neutrality as largely a fraud, another tall tale told by the establishment to disregard popular will and maintain the liberal elites in power. A strong president, as Trump aspires to be, is required to assert himself and to require the law enforcement bureaucracy, like the other deep state agencies, to fall into line. It is then open to him to reinterpret or misinterpret the norm—or to seek to discredit it entirely—with lasting impact.
It is possible to be heartened by the appointment of a special counsel in the Russia case and to see in his ongoing inquiry, supported by the supervising deputy attorney general, a sign that the independence norm is alive and well. More pessimistically, we might see this as a last gasp, a concession to the post-Watergate norm that future presidents may unwilling to make. We may see them protect themselves against these risks by choosing with care “dependable” senior department personnel and embracing the “absolute right” to control the federal law enforcement process. There will be fewer or no Robert Muellers, just as there are no more Ken Starrs.
Locating his position at an extreme point on the continuum, Trump is dangerously adjusting the terms of the debate about norms. He is paving the way for successors of similar, purportedly “populist” outlook to encounter the independence norm in weaker condition than the day he took office. They may pay it more lip service or refrain from the use of Twitter to attack it. But the temptation to achieve a major extension of presidential administration in the deepest corners of federal enforcement, enhancing their control and bolstering their defenses, may prove irresistible. They will be encouraged to take what they can from the unfortunate Trump legacy.
It is not hard to see how this could happen if we see more presidential candidates recruited from outside of government, from the ranks of those wholly inexperienced in it. Trump’s particular brand of business ethics and his view of what his lawyers owe him may well be of the coarsest variety. But he may not be the last to come into government on a platform of distrusting and despising it. The norms underpinning the operation of this government, such as Justice Department independence, may not impress these successors much more than they evidently impress Trump. They may have neither the will nor the experience required to keep those norms alive. They might expect to pay a small and bearable price for letting them wither.
This is one of the costs of the wholesale, undiscriminating attack on an establishment, as the president’s supporters call it. In the past, the articulation and defense of these norms has relied on a community of those who know and have served in government, and who care about institutions. Yet Trump and his constituency seem unwilling to hear such counsel. If there is any hope of getting their attention, the volume will need to be turned up. The organized bar, among other associations within the civil society, should be adding its voice to the chorus. Where, on this issue, is the American Bar Association?
The late English historian A.J.P. Taylor wrote approvingly that “a country with a long constitutional history develops a political class. The politicians look after the government. The generals and bankers and professors mind their own business.” He was overstating his point for effect. Political classes can, of course, become entrenched and sclerotic, and the infusion of fresh outlooks developed from outside the beltway in other lines of work and walks of life are necessary to air things out. Still, the point resonates at a time when a businessman without government experience is guided by a retired general in the management of the government, and speechwriters with a partisan political background like Stephen Miller try their hand at drafting executive orders on immigration.
For the norms necessary for the integrity of law enforcement to survive, the government cannot be run by those who generally detest it except and only to the extent that it can be bent to their will. The nation’s leaders need to know or learn enough about norms to think hard about how to make them perform their function of preserving liberty in a constitutional democracy. They should thinking about this as an absolute duty rather than carving out for the president “absolute rights.”