Hypocrisy, as the old saying goes, is the tribute paid to virtue by vice. Donald Trump’s complaints about the “weaponization” of the Justice Department juxtaposed with his threats to lock up various political rivals may appear hypocritical. But mere hypocrisy affirms a virtue even while skirting it. What Trump is attempting to do is undermine the virtue itself. His goal in fighting his indictment while threatening to seize control of the Justice Department and prosecute Joe Biden is to destroy the very idea that the Justice Department can enforce the law in a nonpartisan way. And a large segment of his party is joining him.
In the wake of Watergate, which revealed how a sufficiently ruthless president could turn the law-enforcement apparatus in the executive branch into something close to a secret police, the Justice Department implemented a series of reforms to wall itself off from the president. Trump spent four years railing against those reforms, demanding both publicly and privately that the department investigate his enemies and protect his friends.
And while Trump-era attorneys general resisted Trump’s crudest demands, they gave ground to many of them. William Barr intervened to reduce sentences for Trump cronies Michael Flynn and Roger Stone and to appoint a special counsel to attempt to prove that some combination of Barack Obama, Hillary Clinton, and the “deep state” trumped up the Russia scandal.
Biden campaigned on a promise to restore nonpartisan norms to the Justice Department. He allowed John Durham’s investigation to run its course unmolested and has let the department look into his own handling of classified documents. When Trump flagrantly defied government demands to return classified material, Biden’s attorney general appointed Jack Smith as special counsel (another post-Watergate reform) to investigate the potential crime. Attorney General Merrick Garland did not inform Biden of the timing or details of the indictment of Trump. “I have not spoken to him at all, and I am not going to speak with him,” insisted Biden.
Even as they complain about weaponization, Republicans are attacking Biden for following this norm. Mike Pence demands that Garland break down the wall separating him from Smith: “Today, I’m calling on the attorney general to stand before the American people and explain why this was necessary in his words. Attorney General Merrick Garland, stop hiding behind the special counsel and stand before the American people and explain why this indictment went forward.”
The Wall Street Journal editorial page wants to not only break down the wall between Smith and Garland but the one between Garland and Trump:
Special counsel Jack Smith announced the indictment in a brief statement on Friday. But no one should be fooled: This is Attorney General Merrick Garland’s responsibility. Mr. Garland appointed Mr. Smith to provide political cover, but Mr. Garland, who reports to Mr. Biden, has the authority to overrule a special counsel’s recommendation. Americans will inevitably see this as a Garland-Biden indictment, and they are right to think so.
Why would conservatives wish to take a nonpartisan criminal prosecution and make it partisan? Precisely so that they can discredit it.
Two years ago, as the New York Times points out, House Democrats passed a legislative package that would have required the Justice Department to give Congress records of its contacts with White House officials, but Republicans opposed this measure as an affront to Trump. If they genuinely feared that Biden would weaponize the department, you’d think they would have leapt at the chance to create some accountability measures to expose this. But Republicans are deciding that a professionalized Justice Department that decides cases insulated from political concerns is a losing game for them.
Since 2016, Trump has been depicting his political opponents as criminals — most recently, Joe Biden but, before him, Hillary Clinton, Barack Obama, and sundry critics ranging from John Kerry to Adam Schiff and Joe Scarborough. He has done this not despite but because of the fact that Trump himself is a crook — a man who worked with mobsters, hired a mob lawyer, and spent decades swindling people and getting away with it.
The mentality of a criminal is to assume that everybody breaks the law (unless you’re a sucker). Trump has spent seven years trying to bend law enforcement toward his way of looking at the world, which assumes that the law is nothing more than a weapon powerful people use against their weaker adversaries. He has lost more than he has won: Robert Mueller produced convictions of half a dozen of Trump’s lawyers and advisers, while Trump’s effort to create his own Mueller, John Durham, yielded just two failed indictments.
The Republican Party has invested itself politically and emotionally in Trump’s crusade and grown angrier as a procession of law-enforcement figures has failed to produce the desired results. And yet most of the people they castigate are themselves Republican: Mueller, James Comey, and Christopher Wray, who is currently the target of Republican outrage over his failure to prosecute Biden.
The underlying cause of their distress is simply that the subjects of Trump’s anger are not crooks. Some of them have certainly made errors — Clinton used a personal email server to conduct her business, Biden let his son sell his name to foreign businessmen on the apparently empty promise that they would have political influence — but these are normal politician’s errors. They are not in the same category as Trump’s obstinate refusal, in the face of pleas by his own attorneys, to return highly classified information after the government spent a year and a half asking nicely.
Republicans want Trump’s rivals to face at least the same level of legal disgrace as he does. But their demand for equality of outcome is impossible in the context of a system that applies the law fairly. Trump is going to have worse legal outcomes than normal politicians or FBI staffers do, because they’re not crooks and he is. Tearing down judicial neutrality, and turning the whole machine into a nakedly partisan mechanism, is Republicans’ resolution to this unbearably humiliating state of affairs.
