When the Senate Judiciary Committee convened last month to approve a bill to protect Robert Mueller, a number of Republicans opposed to the proposal clung to a wild claim: They said they felt bound by the late Justice Antonin Scalia’s dissenting opinion in a case that upheld a law, since lapsed, that created an independent counsel similar in spirit but not in kind to the special counsel now leading the Russia probe. Scalia’s main point was that the president was supreme over the Executive branch, with “complete control” over criminal prosecutions and investigations. That is, he could order them shut down. Or fire the prosecutor in charge. Or demand that a new criminal inquiry be opened if he so wished. No other justice accepted Scalia’s position.
And yet that outlier theory, which remains all the rage in conservative legal circles, seems to be the driving force behind Donald Trump’s latest order to the Department of Justice, via Twitter, to “look into whether or not the FBI/DOJ infiltrated or surveilled” figures associated with the Trump campaign for partisan reasons. And into whether the Obama administration had anything to do with this so-called infiltration, which was so secretive and damaging that the president never bothers to mention that no aspect of it was ever disclosed in the lead-up to the presidential election.
Thought leaders and lawyers on Fox News and elsewhere — which is to say, Trump’s whisperers — have for months been beating the drum that the president can do no wrong in his dealings with law enforcement functions and functionaries: He couldn’t possibly obstruct justice in dismissing James Comey or even the special counsel because firing officials is a core executive function. He can’t be indicted at all while in office because that could destabilize the Executive branch. And forget about being subpoenaed to testify — that’s out of constitutional bounds, too.
The Justice Department as a Trump plaything is just an extension of the same rejected Scalia reasoning. “A president can also order the termination of an investigation by the Justice Department or F.B.I. at any time and for any reason,” Trump’s lawyers wrote to Mueller in a letter described to the New York Times. That’s categorically not the law. It is just one big, pointless trial balloon — in the same way Trump’s delusion that President Obama had ordered a wiretap of Trump Tower to damage him politically was a baseless accusation unmoored from reality. In another tweet posted early on Saturday, Trump all but confirmed that the reason he wants his own DOJ and FBI investigated is the goading by House Intelligence Committee members who want to see classified documents related to a counterintelligence informant revealed to have assisted the FBI in the early stages of the Russia investigation. This alleged plant, which Trump insisted was appointed for “political purposes,” is simply the latest bogeyman Trump and his congressional enablers are peddling, in hopes that public sentiment against Mueller will begin to sour.
What’s distinctly egregious about this latest freakout — which lasted all weekend long and included the usual swipes at Hillary Clinton, Andrew McCabe, Tony Podesta, and Mueller’s team of “13 Angry and Heavily Conflicted Democrats” — is how much it resembled Trump’s mendacious campaign promise of prosecuting his political enemies. Leave aside that much of Trump’s huffing and puffing was, as is often the case, devoid of fact — that he’s willing to weaponize his presidential power to demand that the Justice Department investigate itself is just another nod to Richard Nixon. And the action is of a piece with his ongoing war on his own law enforcement apparatus — which, since the Watergate years, has operated independently from the White House. That insulation was an institutional response to a president that didn’t know the distinction between lawless abuse and lawful use of his own authority.
Perhaps in an attempt to defuse a disastrous confrontation with the president, who promised to “officially” take action on Monday, Rod Rosenstein, the deputy attorney general and overseer of the Mueller probe, responded by directing the Justice Department’s inspector general to look into the matter. Mind you, Michael Horowitz is already looking into an earlier Trump freakout (what the president thinks is the politicized abuse of secret foreign surveillance orders), and now he’ll take on this extra load. But there’s something to be said about Rosenstein caving in and agreeing to even take the president seriously. “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action,” Rosenstein said in a statement.
There’s likely none of that at play here: Everything we know so far points to a hit on the Justice Department and the FBI simply because Trump feels besieged and out of sorts — and because Devin Nunes and his faithful allies in the House are determined to undermine Mueller and Rosenstein at every turn. They’re the ones who have been demanding for weeks that DOJ turn over more information about the secret informant, longtime intelligence source Stefan Halper, whose identity the FBI had been keeping under wraps. Based on the available information, Halper’s only job seems to have been to determine if there was anyone in the Trump campaign carrying water for Moscow.
The Trumposphere has attempted to paint the work of Halper as a nefarious plot of an Obama spy embedded in the deepest reaches of the Trump campaign. The Wall Street Journal became the latest outlet over the weekend to name the informant, who met informally with at least three Trump aides during the campaign — Carter Page, George Papadopoulos, and Sam Clovis — in order to help the FBI assess whether they were compromised by the Kremlin. That none of this information came to light as an October surprise is the fatal flaw in the charge that federal investigators were politically biased against Trump.
Could it be our president is just feeling the pressure from all sides and is just lashing out — what with his nonlawyer Michael Cohen facing a tightening criminal investigation in New York, Mueller inquiring about yet another Trump Tower meeting, with figures representing Saudi interests, and growing journalistic concern with China’s financial influence on his business empire? Or maybe he’s worried that Roger Stone, his onetime partner-in-crime, may be the next one to be felled in the Russia probe, or that Paul Manafort, who can’t seem to catch a break in court, will finally break and flip on the biggest fish of them all?
None of those concerns justifies Trump knocking down the firewall that for more than four decades has existed between the Justice Department, the FBI, and the president. And yet every indication we’ve seen so far points to a looming showdown that could well result in mass resignations among the government’s ranks. FBI director Chris Wray told a Senate panel why it matters that some of his agency’s most sensitive work, and the work of intelligence sources, remains hidden from public view. “The day that we can’t protect human sources is the day the American people start becoming less safe,” Wray warned. For all his pro-law-enforcement crowing, it’s become increasingly clear that Trump doesn’t care one bit about protecting the life, limb, or independence of those working with or in law enforcement — so long as they’re not also working to protect him from criminal or political scrutiny.
