Trump, Obstruction, and the Resilience of the DOJ
This week the New York Times published a lengthy report on president Trump’s “two-year war” against the various investigations surrounding him. The report details Trump's repeated efforts to undermine the special counsel investigation and other criminal probes of him and his campaign. The pattern of conduct by the nation's top law enforcement officer is unprecedented and extremely troubling. But what doesn’t get enough attention is how little effect the president’s attacks have actually had. The Department of Justice has proven remarkably resistant to president Trump’s efforts to obstruct justice. Trump’s statements and actions (or attempted actions) are often likened to those of the authoritarian leaders whom he seems to admire. Certainly leaders in a totalitarian country have little difficulty manipulating the legal system to protect themselves and punish their enemies. But standing in Trump’s way in this country has been his own Department of Justice, along with the independent judiciary. The president has found it much more difficult to bend the rule of law to his will than he probably imagined.
Former Attorney General Jeff Sessions
Step One: Picking Jeff Sessions
The first example of the president’s efforts to manage the investigations into his own conduct took place before he was even sworn in, when he selected Jeff Sessions to be his Attorney General. Sessions, then a senator from Alabama, was one of Trump’s earliest and most steadfast supporters. With allegations about the Trump campaign’s interactions with various Russians already swirling, the president apparently believed Sessions would protect him as Attorney General. But Sessions quickly faced legal issues of his own related to the FBI’s Russia investigation. He had private contacts with the Russian ambassador during the campaign, and there were allegations he may have committed perjury by concealing those contacts during his Senate confirmation hearing. On March 2, 2017, Sessions concluded that his own potential involvement required him to recuse himself from overseeing the Russia investigation. Sessions’s need to recuse himself was clear, not a difficult call. But it infuriated Trump, who continued to talk about it for the next eighteen months while he repeatedly criticized and humiliated his own Attorney General. At one point Trump said he never would have given Sessions the job if he had known he would recuse himself. Trump thought he had found in Sessions someone who would place personal loyalty over the law and wouldn’t be afraid to cut a few ethical or legal corners to protect the president if necessary. But Sessions, who was also a former United States Attorney, was not that man. Whatever else you might say about his time as Attorney General, Sessions respected the institution of the DOJ and the rule of law by his recusal. I’d argue it was perhaps his finest moment.
Pressuring James Comey
Next came president Trump’s attempts to influence former FBI director James Comey. In Senate testimony and in his book, Comey has reported how the president asked him for “loyalty,” which Comey refused to promise. At a meeting after national security advisor Michael Flynn was forced to resign based on his lies about his Russian contacts, Trump reportedly cleared the room to speak with Comey alone. According to Comey, Trump said Flynn was a “good guy” and essentially asked Comey to drop the investigation into Flynn. Comey, a career DOJ and FBI official, not only refused to give any such assurances but was clearly appalled and shaken by the request. As with Sessions, it appears Trump valued Comey's “loyalty” over any sense of independence or fealty to the rule of law. Once again, he was disappointed. Flynn ultimately was prosecuted, pleaded guilty, and has cooperated with the special counsel investigation.
Former FBI Director James Comey
Firing James Comey is the act most frequently cited as possible obstruction of justice by the president. Allegations of obstruction were fueled by Trump’s own statements, when he told Lester Holt of NBC that he fired Comey in part because of the Russia investigation. Trump also told two Russian officials, in the Oval Office, that firing Comey had relieved pressure on him from the investigation. But if Trump hoped that firing Comey would somehow derail the Russia investigation, he was very much mistaken. In fact, just the opposite occurred. Concern over Comey’s firing and Trump’s possible motivations for it ultimately led Deputy Attorney General Rod Rosenstein to appoint the special counsel, Robert Mueller, about a week later. The Russia investigation continued, and grew, under the new acting FBI director. There’s no indication that firing Comey had any negative impact on the investigation of the Trump campaign’s possible ties to Russia. The justice system is bigger than any one person. If you fire the FBI director, the pending investigations being conducted by career professionals don’t simply go away. Ironically, this could end up being a defense for Trump to any obstruction of justice allegation. Obstruction requires an act that would have the “natural and probable effect” of obstructing the proceeding. Trump has a decent argument that firing the FBI director would not qualify as obstruction because there would be no expectation that doing so would end, or even impede, any particular investigation being handled by the FBI.
Attacks on Mueller and Rosenstein
The president has been unrelenting in his attacks on Mueller, Rosenstein, and the Russia investigation. On Twitter he repeatedly rails against the “witch hunt” being conducted by Mueller and his team of “angry Democrats.” (Mueller is a life-long Republican, and the “witch hunt” so far has resulted in indictments of about three dozen people, which is a lot of witches.) The Times report found that Trump has publicly attacked the Russia investigation more than 1100 times. But Rosenstein, another career DOJ official, has repeatedly defended the Mueller probe. Mueller, a former head of the FBI and senior DOJ official, has simply kept his head down and done his job, commenting only through the cases that he brings. There’s certainly no sign Mueller’s team has been cowed or deterred by the president’s attacks. The president has violated all kind of norms about respecting the independence of the Justice Department and not commenting on criminal investigations. Those norms should be doubly powerful when the president himself is a subject of the investigation. But there’s no indication Trump's disregard of those norms has actually impeded Mueller's probe. For all that Trump may have threatened to fire Mueller and/or Rosenstein, that hasn’t happened. Seasoned lawyers and professionals in his administration apparently have been able to convince him that would be a bridge too far and would lead to consequences even more severe than firing Comey. Cooler heads have been able to convince the president to avoid another “Saturday Night Massacre.”
Replacing Jeff Sessions
Shortly after the 2018 elections, president Trump forced Sessions to resign and appointed Matt Whitaker as acting attorney general. This meant Whitaker, who was not recused from the Russia investigation, would take over from Rosenstein as the person overseeing the Mueller investigation. Whitaker had been Sessions’s chief of staff, was not Senate confirmed, and was not in the ordinary chain of command for appointing an acting attorney general. He had also made public comments extremely critical of the special counsel probe. This caused a full-scale freak-out by Democrats convinced Whitaker was being installed so he could kill the Mueller investigation. At the time, I argued the panic was premature. I believed the institutional norms protecting criminal investigations and the independence granted to the special counsel would make it extremely difficult for Whitaker to thwart Mueller's investigation. It seemed pretty clear Whitaker was a lightweight who was in over his head. If he were in a room with seasoned DOJ pros Mueller and Rosenstein disagreeing about where the investigation should go, my money was on Mueller and Rosenstein. I also noted Mueller is a professional who, if he really felt he was being impeded, would almost certainly resign and go public or find some other way to make that known. Finally, the Mueller investigation had already gone pretty far down the tracks, and I doubted there was much Whitaker or anyone else could do to derail it at this point. Whitaker has now been replaced by Attorney General William Barr, and there’s no sign that in his three-month tenure Whitaker did anything to hurt Mueller’s investigation. For what it’s worth, during his fairly disastrous recent Congressional testimony Whitaker denied that he had taken any steps to impede the special counsel. As far as we can tell, that appears to be true. Even if Whitaker would have liked to restrict Mueller somehow, it was not a realistic possibility for him.
Attempted Interference with the Southern District of New York
Another critical factor that shields the investigations involving the president from his interference is the involvement of prosecutors in the Southern District of New York. Mueller has handed off to New York prosecutors investigations of matters that do not directly relate to his probe. This includes the campaign finance investigation of “hush money” payments to women. Trump’s former personal attorney Michael Cohen pleaded guilty in that case and said the president himself directed him to make those payments. A second matter is the grand jury investigation into the president’s inaugural committee, which is suspected of possible misuse of funds and acceptance of illegal foreign contributions. Prosecutors in New York just issued a massive grand jury subpoena to the inaugural committee seeking records related to that inquiry. Having those investigations resident in the Southern District of New York is another way in which the structure of the Department of Justice insulates the cases from presidential meddling. It’s true the U.S. Attorney’s Office is still part of the Department of Justice, but there is an extra layer of insulation and structural separation there, as compared to lawyers working at Main Justice in Washington. This is probably particularly true of the SDNY, which is so well-known for being fiercely independent that its nickname is the “Sovereign District of New York.” After Trump fired the former SDNY U.S. Attorney Preet Bharara, he appointed Geoffrey Berman to head that office. Berman is a former law partner of Rudy Giuliani’s and is perceived to be a Trump loyalist. However, when the FBI raided the home and offices of Trump attorney Michael Cohen last spring, we learned that Berman was not involved in the Cohen investigation because career DOJ officials had determined he had to be recused. As with Sessions, if Trump thought he had someone in place who would protect him, the culture of the DOJ prevented that from happening. The New York Times report discusses a previously undisclosed incident where Trump reportedly asked Whitaker whether Berman could “un-recuse” himself and take control of the New York investigations. It’s unclear whether this ever went further than an idle conversation, but Whitaker quickly understood that was not an option and it didn’t happen. Even if Trump had been able to interfere with or fire Mueller, the investigations being conducted by the professionals in Mueller’s office would not simply vanish. And the separate investigations in New York would be completely unaffected. In fact, the SDNY may ultimately pose a greater threat to Trump than Mueller. Unlike Mueller, their jurisdiction is not limited to one topic; they can investigate anything related to Trump and his business that happened in their district – which is Manhattan, Trump’s home base. And the prosecutors in that office are skilled, experienced, and famously relentless.
Attorney General William Barr
Barr Takes Over
Now there are worries about the new Attorney General William Barr, who while in private practice wrote a lengthy memo extremely critical of the Mueller investigation. At his confirmation hearing, Democrats expressed concerns over whether he would allow Mueller to finish his work. Barr, who considers Mueller a friend, pledged that he would. I don’t think we have any reason to believe the contrary. Whatever you may think of his policies, Barr is a serious person and former Attorney General who understands his role. Once again, if Trump thought that by appointing Barr he was installing someone who would make protecting the president his top priority, I think he is going to be disappointed. As I write this, there are new reports coming out that Mueller may be delivering a report to the Attorney General as early as next week. That has led to yet more speculation that Barr may have moved to kill the Mueller investigation as soon as he was sworn in. I suspect that these fears will prove to be groundless. If it’s true that Mueller is really finishing up (and I have my doubts), I think we can be confident it’s because this is the timing he chose and that he has been allowed to complete his work unimpeded.
Was it Obstruction?
Legally, whether Trump actually obstructed justice does not matter. The law prohibits corruptly endeavoring to obstruct a proceeding, whether or not the endeavor was successful. So if there is a criminal obstruction case to be made, it won’t falter simply because Trump’s efforts did not succeed. But it’s encouraging to see just how difficult it has been for Trump to actually hamper the many investigations swirling around him. Individuals including Sessions, Comey, and Rosenstein may be criticized for particular actions. But as an institution, the Department of Justice has shown itself to be remarkably resistant to the president’s attacks. There is tremendous institutional gravity within the Department concerning its mission and independence. This is understood by all those who have worked there, although frequently doubted by those who have not. Particular leaders and political appointees may come and go, but the history and norms that protect the rule of law live on in the thousands of career professionals who work at DOJ. In a time when so much of government seems to be dysfunctional, the Mueller probe and the DOJ handling of the other investigations involving the president have stood out as examples of a critical government institution functioning as it should. That the investigations of Trump have persisted in the face of an unprecedented onslaught by the president and his supporters is a testament to the strength of our legal institutions. That is something to celebrate.
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