President Donald Trump is putting his Justice Department in an impossible spot by demanding that it investigate his political opponents.
With his forceful pleas via Twitter and recent media interviews to launch inquiries into everything from Hillary Clinton’s e-mails to an Obama-era uranium deal, the president is essentially setting the department up for a major breach of protocol if it actually follows through on his requests, according to former government attorneys and prosecutors.
“There is a reason why we have a norm against presidential interference in criminal investigations,” said Paul Rosenzweig, a former George W. Bush-era Homeland Security official and senior counsel from the Kenneth Starr investigation into President Bill Clinton. “President Trump is the living, breathing proof-case for that norm.”
Trump’s calls for both the Justice Department and the FBI to dig into a series of purported Democratic scandals have been widely dismissed as a way to deflect attention from special counsel Robert Mueller and the criminal charges he filed earlier this week against three of the president’s former campaign aides.
But Trump is still the president of the United States, and his public statements encouraging investigations into his current and former opponents have drawn widespread criticism across the ranks of current and former law enforcement officials. Trump’s statements also leave his political appointees at the Justice Department in a bind: Do they follow the orders of the president who put them in their jobs, or do they follow the historical norms and rules of their department that mandate they stay clear of politics when they open, investigate and close any criminal cases?
“Any probe would be suspect from the get-go because it was instigated by Trump, against his former political rival, and was promised during the campaign and then only revived when Trump got into his own political hot water,” said Peter Zeidenberg, a former Justice prosecutor who worked on the Bush-era special-counsel inquiry into who leaked the identity of CIA operative Valerie Plame Wilson.
“I cannot imagine DOJ would entertain this — at least I would hope not,” he added. “It would set a horrendous precedent if the president of the United States could dictate to the DOJ who should be investigated and then start that practice by investigating his former political rival.”
As a practical matter, Trump’s pleas may not even fall to Attorney General Jeff Sessions, who in March said he would recuse himself “from any existing or future investigations of any matters related in any way to the campaigns for president of the United States.”
That move — widely panned by the president, who even said he wouldn’t have nominated the Sessions had he known there’d be a recusal — opened the door in May for Deputy Attorney General Rod Rosenstein to appoint Mueller as special counsel to investigate potential collusion between Trump’s 2016 campaign and the Kremlin.
Now, Sessions appears to still be on the sidelines for some, but not all, of the topics Trump is demanding be investigated.
Topics seemingly off-limits for Sessions include the so-called Trump dossier, the Democratic National Committee’s joint fundraising agreement with the Hillary Clinton campaign, and possibly even the FBI’s investigation into Clinton’s handling of emails while serving as secretary of state.
Sessions, however, could still have control if the Justice Department determined that it should examine the Obama-era deal that allowed a Russian-owned company to assume control of a slice of U.S. uranium-extraction capacity.
But for all of the issues Trump is pressing the department to act on, Justice officials would still need to determine that there was criminal activity warranting a deeper look, let alone appointment of a special counsel.
Solomon Wisenberg, a former Starr prosecutor and former assistant U.S. attorney, singled out Trump’s request to open an investigation into the rigging of the 2016 Democratic primary process to favor Clinton, calling it a “hideously ridiculous” idea considering there is no alleged criminal activity.
“DOJ is not a roving ethics investigator,” he said.
As a presidential candidate, Trump raised alarm among law enforcement officials when he encouraged his campaign crowds to castigate Clinton with chants of “Lock her up” during his raucous rallies.
Later, after Trump won the White House, he tried to tamp down expectations that his vanquished 2016 opponent would face federal prosecution, telling a crowd in Michigan in December, “That plays great before the election — now we don’t care, right?”
But Trump has kept the controversy alive while privately and publicly stewing over a Russia investigation that hit its biggest milestone with Monday’s criminal charges, and that has also swept up more than a dozen 2016 campaign and White House staffers and even exposed some of the president’s own family members, including his oldest son, Donald Trump Jr., and his son-in-law Jared Kushner. Trump himself is also under investigation for obstruction of justice related to his firing of FBI Director James Comey.
Over the summer, Trump publicly humiliated Sessions for recusing himself from the Russia inquiry and also flirted openly with the idea he would fire Mueller. While White House officials earlier this week insisted the president wasn’t planning to take any action against the special counsel — even ignoring his former adviser Steve Bannon’s push to defund the Mueller probe — the president has turned his ire on Democrats and the wider justice system.
On Wednesday, one day after a deadly terrorist attack in New York City, Trump turned to Twitter to declare that the suspect, Sayfullo Saipov, “SHOULD GET DEATH PENALTY!” He also used social media to go after George Papadopoulos, dubbing the former foreign-policy campaign adviser a “liar” soon after unsealed court documents showed that he had pleaded guilty to charges of lying to the FBI — and suggesting he had become a cooperating witness in Mueller’s investigation.
In an interview Thursday with talk radio host Larry O’Connor, Trump said he was “very unhappy” with the Justice Department and lamented the political norms that maintain a separation between the president and federal law enforcement.
“The saddest thing is, because I am the president of the United States, I am not supposed to be involved with the Justice Department,” Trump told O’Connor. “I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it.
“It’s very discouraging to me. I’ll be honest, I’m very unhappy with it, that the Justice Department isn’t going … maybe they are, but you know, as president — and I think you understand this — as a president you’re not supposed to be involved in that process.”
Trump capped off a week of complaints about the judicial system Friday by criticizing as “a complete and total disgrace” a military judge’s decision not to impose prison time on Army Sgt. Bowe Bergdahl for walking away from his post in Afghanistan.
On their own, several of Trump’s remarks have raised alarm for the effect they could have on active legal proceedings. Bergdahl’s lead attorney said that the president’s previous remarks about the case could be used during the appeals process to get any sentence overturned. In the Papadopoulos case, former Watergate prosecutor Nick Akerman warned that the president had defamed a potential government witness who is likely to be called in a federal trial.
“This could be grounds for Mueller to obtain a gag order on Trump,” Akerman said. “It would be unprecedented, but he is interfering with the government’s right to a fair trial.”
Randall Samborn, a former assistant U.S. attorney in Chicago, said that examining all of the president’s remarks in total “causes a real sadness for anyone who believes in and is dedicated to the idea of independent law enforcement and independent judicial proceedings.”
“They demonstrate either an unwillingness to grasp, or an inability to grasp, the reasons why it’s critical to keep politics removed from law enforcement and the judicial process,” said Samborn, who served as spokesman for then-U.S. Attorney Patrick Fitzgerald during the Bush-era probe into the Plame leak.
Justice Department officials haven’t directly addressed Trump’s specific calls to open investigations into his political opponents.
But during an American Bar Association luncheon Friday, Rosenstein was asked to address how he squares Trump’s recent remarks with the existing Justice regulations that prohibit department staff from commenting about active criminal cases, including the credibility of a witness.
The deputy attorney general responded by noting that senior officials, including Sessions and FBI Director Chris Wray, “understand the rules” and can differentiate from the “opinions” circulating across the country.
“It’s not that people won’t express opinions. In Washington, you get a lot of opinions,” Rosenstein said. “You have 535 legislators down the street. They’re on television every day telling us their opinion about what we should do.”
“We understand the rules and we follow them,” he added. “That’s why I can assure you that everything we do at the DOJ is going to be consistent with the rule of law and consistent with the principles and traditions of the department.”
Trump hasn’t been specific in his tweets about whether he’s looking for another special counsel investigation along the lines of what Mueller has launched on Russia, or whether he’d prefer individual inquiries in each case. Some of his allies, however, have pushed for the appointment of a special counsel.
Roger Stone, the longtime GOP operative and Trump confidant, told The Daily Caller on Monday that the president’s “only chance for survival” was to get the Justice Department to investigate the uranium deal, which several congressional committees are already looking into.
Conservative attorney Larry Klayman has also been circulating a petition promoting himself to be appointed as special counsel.
On Capitol Hill, lawmakers are scrutinizing Clinton’s involvement because the State Department signed off on the uranium deal when she was secretary, although there is no evidence she was personally involved.
While many Republicans in Congress say they back Mueller, they are open to the special counsel’s having some company. Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, posted on Twitter last week that “whoever in DOJ is capable” of appointing a special counsel on the uranium deal should do it.
Republican members of the House Judiciary Committee have also been making their own pitch since July, when they wrote to top Justice officials urging them to get a special counsel on the clock to examine everything from the FBI’s handling of last year’s investigation into Clinton’s personal email server to several actions related to Loretta Lynch, former President Barack Obama’s attorney general.
Multiple special counsels working at the same time isn’t out of the norm. In fact, seven different special counsel investigations — operating under a law that has since lapsed — at various points examined the Clinton administration, including the inquiry into his Whitewater land deals that morphed multiple times before ending in impeachment proceedings tied to his sexual relationship with White House intern Monica Lewinsky.
President Ronald Reagan dealt with eight different independent counsel investigations during his two terms, including the Iran-Contra affair, which examined the actions of then-Lt. Col. Oliver North and other senior administration officials who were accused of selling arms to Iran and diverting profits to right-wing rebels in Nicaragua.
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