“It was a dark and stormy night.” Sure, use bad weather as a metaphor. But the weather can be quite good when bad things happen. Still, Politico frames what is happening in Washington as kind of like a cold snap:
President Donald Trump’s post-impeachment acquittal behavior is casting a chill in Washington, with Attorney General William Barr emerging as a key ally in the president’s quest for vengeance against the law enforcement and national security establishment that initiated the Russia and Ukraine investigations.
In perhaps the most tumultuous day yet for the Justice Department under Trump, four top prosecutors withdrew on Tuesday from a case involving the president’s longtime friend Roger Stone after senior department officials overrode their sentencing recommendation – a backpedaling that DOJ veterans and legal experts suspect was influenced by Trump’s own displeasure with the prosecutors’ judgment.
And then everything went cold and it felt like all joy of any kind had left the world forever. No, that would be the Dementors of Azkaban dropping by. This was just the attorney general:
“With Bill Barr, on an amazing number of occasions you can be almost 100 percent certain that there’s something improper going on,” said Donald Ayer, the former deputy attorney general in the George H. W. Bush administration.
The president has only inflamed such suspicions, congratulating Barr on Wednesday for intervening in Stone’s case and teeing off hours later on the prosecutors, calling them “Mueller people” who treated Stone “very badly.”
The president said he had not spoken with Barr about the matter, but Ayer called the attorney general’s apparent intervention “really shocking,” because Barr “has now entered into the area of criminal sanction, which is the one area probably more than any other where it’s most important that the Justice Department’s conduct be above reproach and beyond suspicion.”
Yeah, well, that’s gone now:
Barr’s evident intervention in matters of personal interest to the president, particularly as they relate to former campaign advisers once at the center of Mueller’s Russia probe, has now put the reputation of an entire institution at risk, DOJ veterans said. It sent an alarming signal to hundreds of line attorneys inside the department, who may now fear that any work touching on the president’s allies will be subject to political interference, they said. And it could undo decades of post-Watergate work to separate the president from the justice system, in ways that could damage DOJ’s credibility with federal judges and with the public as a whole.
Things have changed. Prosecute the bad guys, but be careful. Don’t mess with the president’s friends. Do that and you’ll be out of work, or worse. And of course that changes how these people do their jobs, but it’s chilly everywhere:
The president’s campaign of retribution apparently doesn’t stop there: He also pulled former U.S. Attorney Jessie Liu’s nomination to serve in a senior Treasury Department post, Treasury Secretary Steven Mnuchin confirmed during a hearing on Wednesday.
As the U.S. attorney for the District of Columbia, Liu oversaw the prosecutions of Stone, Trump’s former national security adviser Michael Flynn, and Trump’s former campaign chairman Paul Manafort, while the office’s case against former FBI deputy director Andrew McCabe—who Trump has repeatedly lambasted—has languished without an indictment.
Mnuchin would not tell the Senate Finance Committee on Wednesday why Liu’s nomination was withdrawn.
He just smiled. That should worry everyone:
“I’ve never seen anything this dramatic,” said Mary McCord, the former acting assistant attorney general for national security, who accused Barr and his deputy Jeffrey Rosen of being “willing to do the president’s bidding for political purposes in individual cases.”
The four attorneys who withdrew from the Stone case “should be seen as heroes in some respects,” said Channing Phillips, who served as the U.S. attorney for the District of Columbia from October 2015 to September 2017. “It was obviously a courageous action on their part.”
“It’s a pretty dramatic thing to do,” said Edward McMahon, Jr., a veteran D.C. defense attorney who has dealt with the D.C. U.S. attorney’s office for decades. “I’ve never seen anything quite like this.”
They’re stunned. The weather has changed:
Trump criticized the prosecutors in harsh terms in his off-the-cuff remarks on Wednesday, contrasting the high end of their recommended sentence for Stone to those doled out to “murderers and drug addicts.”
“They put him in for nine years,” Trump said. “It’s a disgrace.”
That argument angered even some Republicans, who said it amounted to a demand for favorable treatment for the president’s allies.
“There are literally tens of thousands of people in prison under such very harsh sentences,” said Charles Fried, the former solicitor general under President Ronald Reagan. “The question is: Do you get to be treated differently from this vast army of harshly punished persons because you are in fact a crony of the president? Well, I think the question answers itself.”
But does the president really care what Reagan’s former solicitor general thinks? That question also answers itself:
Trump declared on Tuesday that he had an “absolute right” to intervene in the Stone case, though he denied doing so. And his allies cautioned that the post-Watergate model of clear boundaries between the president and the Justice Department is just an accepted norm, not a legal imperative.
And now the norms have changed:
John Dowd, a former DOJ attorney who was Trump’s personal lawyer for a portion of the Mueller probe, said that “this idea that DOJ is independent of the president is nonsense.”
Dowd said it appeared to him that the prosecutors, “the same crowd wedded to the Mueller agenda,” had been “grossly insubordinate” in recommending a steep sentence for Stone despite senior DOJ officials’ reported objections, and that Barr was doing the right thing by “cleaning up” the D.C. U.S. attorney’s office.
“Trump wasn’t out of line,” Dowd added. “He is the chief law enforcement officer. He has the right to react, and [the sentencing recommendation] was horrible.”
He is the chief law enforcement officer, thus, he is the law. That’s the argument. Case closed. Or the case is still open at least a little bit:
Not even members of the conservative Federalist Society, whose co-chairman Leonard Leo has helped Trump stock the nation’s courts with conservative judges, seemed completely comfortable with the president’s conduct.
“I’m not super bothered in that it isn’t uncommon for senior members of DOJ to ‘interfere’ with individual prosecutions done by U.S. attorneys,” said one member of the Federalist Society who clerked for a conservative Supreme Court justice. But “from an optics perspective, sure, it is concerning,” this person acknowledged, adding that “it looks like Trump is getting involved in his friends'” cases.
The fact that Stone’s crime was related to election interference, which is what Trump was impeached over, only makes it look worse, this person said.
Ah, but it could be that what we have here is a failure to communicate:
Another Federalist Society member and former Trump administration official acknowledged that the prosecutors’ withdrawal had damaged the image of the Justice Department, but characterized the furor over the Stone case as the result of “a horrible lack of communication” between DOJ leadership and the prosecutors on the case.
But DOJ veterans disputed that.
“Under department policy, the sentencing recommendation would have been reached after consultation all the way up” through the attorney general, McCord said.
Former FBI general counsel Jim Baker echoed that assessment, noting that the “ethos of DOJ is to operate by consensus.”
Okay, that theory doesn’t work, and someone wants an explanation:
Ultimately, Stone’s fate will be left to Judge Amy Berman Jackson, who Trump has attacked with unfounded accusations of political bias. Jackson denied Stone’s motion for a new trial last week and Stone is set to be sentenced on February 20.
Baker said he expects Jackson to put the lawyers on the record about the sentencing confusion, “to find out why DOJ so dramatically changed its legal position and all of the lawyers resigned from the case,” he said.
But this can be explained:
Stone’s allies, meanwhile, are still hoping for a presidential pardon. “This entire investigation was a political hit job, and we believe the MAGA movement agrees: The president should pardon Roger Stone,” said Michael Caputo, a former Trump campaign adviser who founded a committee on Wednesday aimed at encouraging a pardon for Stone.
Trump has not ruled it out. But a White House official, speaking on condition of anonymity, expressed hope that the president opts against it.
“It’s not necessary. Because the guy committed serious crimes,” the official said, referring to Stone. “Donald Trump is impressed when people do a good job for him and don’t make themselves the story. Oh, and don’t break the law.”
It seems that Stone made a pardon impossible, because he made himself the story and, foolishly, he actually committed the specific crimes. He did a good job for Trump and blew it. He made it seem like he himself was actually interesting and important. He isn’t. Trump is. There can be no pardon for that. He will serve at least some time.
But there’s still a chill in the air. Just ask Chuck Rosenberg, the former US attorney, the former senior FBI official, and the former acting head of the Drug Enforcement Administration, who remembers this:
The Justice Department that I know and love – and in which I worked for two decades in many roles – must always be two things to the public it serves: fair and perceived as fair. These are related but distinct concepts. Our work must be fair – that is, we must have fair outcomes as a matter of practice and principle. Anything less is unacceptable, which is one reason, for instance, we turned over exculpatory evidence (a constitutional obligation) and why we publicly fronted our mistakes when we made them.
But our work must also be perceived as fair. Fair outcomes are not worth much if the public does not perceive those outcomes as fair. One way, among many, we ensure that is to assiduously avoid politics in our work. When I was a career federal prosecutor in Virginia, my colleagues and I simply did not talk about politics. I did not know then, and I largely do not know now, how my colleagues (including the federal agents with whom we worked) voted or even if they voted. It simply did not matter to our work. Folks did not talk about it. It was irrelevant to our work. We knew that unwritten rule. Whatever our view, we kept it to ourselves, because it had no place in our world and because letting it seep in would corrode our work. We worked free of political interference or influence. Always.
And then that all changed, in the blink of an eye:
Following the routine filing by the career prosecutors – in line with the sentencing guidelines applicable to the Stone case – the president inexplicably tweeted that the sentence Stone faced was a “miscarriage” of justice, calling it a “horrible and very unfair situation.”
And then – and this is the part that is so disturbing – the prosecutors were ordered, either because of the president’s tweet or irrespective of it (and both scenarios are awful), to rescind their original recommendation and to ask the judge that Stone receive more lenient treatment at his sentencing. What the prosecutors were ordered to do was dangerous and unsettling and undermined everything they – and we – stood for as Justice Department professionals. They properly refused.
We all understand that the leadership at the top of the department is politically appointed, and we make peace with that (in addition to my work as a career federal prosecutor, I served in political positions under Presidents George W. Bush and Barack Obama in the Justice Department and worked for thoughtful appointed leaders of both parties), but being asked by that leadership to allow politics to corrode our work is not remotely normal or permissible. And it is treacherous.
It’s the Big Chill – the suicide that changes everything like in that sad movie – but this is the death of something else:
The rule of law is a construct. It was made by people – and is nurtured and preserved by people. It can also be destroyed by people. And unlike the law of gravity, which works everywhere and all the time (at least on this planet), the rule of law is precious and fragile. As citizens and prosecutors, we either safeguard it or we surrender it. That’s the choice. What political leadership did here – mandating a favor for a friend of the president in line with the president’s publicly expressed desire in the case – significantly damages the rule of law and the perception of Justice Department fairness.
Principled resignations by career federal prosecutors highlighted this dangerous stunt. I am proud of them for that.
But I find it revolting that they were pushed into that corner (one resigned his job; three others resigned from the case) and saddened by their sacrifice. This is not normal and it is not right, and it is dangerous territory for the rule of law.
And, as the New York Times reports, this is dangerous right now:
For decades after Watergate, the White House treated the Justice Department with the softest of gloves, fearful that any appearance of political interference would resurrect the specter of Attorney General John Mitchell helping President Richard M. Nixon carry out a criminal conspiracy for political ends.
In 2001, William P. Barr, describing his first stint as attorney general, under President George Bush, spoke of the department’s protected status in the post-Watergate era. “You didn’t mess around with it, didn’t intervene, you didn’t interfere,” he recalled in an oral history.
Fast forward to 2020, and Mr. Barr is attorney general once more. But President Trump’s ground-shaking conduct has demolished those once-sacrosanct guardrails.
Everything changed all at once, like the weather can suddenly do, so it was time to adjust to that:
To career prosecutors around the country, the Stone case raised new fears of what is to come. Until now, according to conversations with more than a dozen career lawyers in some of the 93 U.S. attorney’s offices, they had watched other divisions in the Justice Department execute significant shifts in response to Mr. Trump while the work of prosecuting crimes was largely unaffected by the politics of the moment. Now career prosecutors said they worried they might face more pressure.
“In essence, the leadership of the Justice Department has commandeered the sentencing in a politically sensitive criminal matter, reversing the position uniformly accepted and promoted by the career prosecutors,” said David Laufman, a partner at Wiggin and Dana and a former chief of the Justice Department’s counterintelligence and export control section.
The withdrawal of the prosecutors sent a clear signal, said Greg Brower, a former prosecutor who once headed the FBI’s congressional affairs office. “They all disagreed” with how top Justice Department officials intervened, he said.
“Beyond that,” Mr. Brower said, “they likely also believed there are ethical considerations that forced their decision.”
That was the principled response, but others just want to keep their jobs:
Prosecutors across the United States, who spoke on the condition of anonymity to avoid reprisals, said this week that they had already been wary of working on any case that might catch Mr. Trump’s attention and that the Stone episode only deepened their concern. They also said that they were worried that Mr. Barr might not support them in politically charged cases.
Many will now choose to ignore the facts of this case or that, and choose to ignore the law, to avoid this sort of public humiliation:
The president congratulated Mr. Barr on Wednesday “for taking charge of a case that was totally out of control and perhaps should not have even been brought” and said prosecutors “ought to apologize” to Mr. Stone.
And there’s a reason that all this happened:
Mr. Stone has become a particular focus in recent days, in part because of Tucker Carlson, the Fox host and longtime friend of Mr. Stone who has been talking frequently on his show about the case.
“Tucker Carlson has been willing to use his stature and prominence to advocate on behalf of his friend Roger Stone to argue substantively against the arbitrary and selective mistreatment that the Office of Special Counsel has directed against Mr. Stone,” said Sam Nunberg, one of Mr. Trump’s early political advisers.
The president made clear he agreed, and now the Justice Department has responded.
That’s odd. Tucker Carlson explained to Donald Trump what’s what and how the world really works, slowly and carefully, and Trump finally got it. That’s possible, but the Washington Post tag-team of Philip Rucker and Robert Costa and Josh Dawsey sees this:
President Trump is testing the rule of law one week after his acquittal in his Senate impeachment trial, seeking to bend the executive branch into an instrument for his personal and political vendetta against perceived enemies.
And Trump – simmering with rage, fixated on exacting revenge against those he feels betrayed him and insulated by a compliant Republican Party – is increasingly comfortable doing so to the point of feeling untouchable, according to the president’s advisers and allies.
In the span of 48 hours this week, the president has sought to protect his friends and punish his foes, even at the risk of compromising the Justice Department’s independence and integrity – a stance that his defenders see as entirely justified.
They have their sources. This is pure rage:
The president has openly encouraged his Justice Department to retaliate against a quartet of former FBI officials who long have been targets of his ire for their involvement in the Russia probe.
“Where’s [James] Comey?” Trump bellowed Wednesday in a stream-of-consciousness diatribe from the Oval Office. “What’s happening to [Andrew] McCabe? What’s happening to Lisa and – to Pete Strzok and Lisa Page? What’s happening with them? It was a whole setup, it was a disgrace for our country, and everyone knows it, too, everyone.”
For months now, Trump has been enraged that these FBI officials have not been charged with crimes. And he has vented at length privately in recent weeks that James A. Wolfe, a former aide to the Senate Intelligence Committee, received a prison sentence of two months for lying to FBI agents about his contact with reporters during a federal leak investigation – a criticism the president repeatedly publicly on Wednesday.
And no one can calm him down:
Some of Trump’s top aides have counseled him against speaking out on legal matters, warning him that doing so could wrongly influence proceedings because officials at the Justice Department or elsewhere would then know they needed to please him or risk his wrath. Trump has often responded, “I have a right to say whatever I want,” according to a former senior administration official who spoke on the condition of anonymity to discuss internal conversations.
“He knows exactly what he’s doing,” this official explained. “He knows that he has more power than anyone else in the government – and when he tweets, everyone has to listen to him.”
And that’s what’s so chilling:
A chorus of former U.S. attorneys and former Justice Department leaders condemned Trump for what they consider improper political pressure in a criminal prosecution.
“I’ve never seen so many prosecutors including those who aren’t political or those who haven’t been following this situation closely go to red alert so quickly,” said Joyce White Vance, a former U.S. attorney in the Obama administration. “The reason is this: If a president can meddle in a criminal case to help a friend, then there’s nothing that keeps him from meddling to harm someone he thinks is his enemy. That means that a president is fully above the law in the most dangerous kind of way. This is how democracies die.”
But there’s also another way that democracies die:
During an election year, few lawmakers are willing to offer even minor criticism of their own party’s president and risk alienating GOP base voters, veteran Republican operatives said.
“It’s one of those things where these lines have never been crossed in this way – that’s the way responsible administrations act,” said Brendan Buck, a longtime adviser to former House speaker Paul D. Ryan (R-Wis.). “But you’ll end up seeing Republicans saying he has the authority to do it, even if they know it’s not necessarily within the bounds of what should be done.”
“It’s like bad weather. Nothing more, nothing less,” said one Republican congressional aide who spoke on the condition of anonymity to candidly explain the thinking of top GOP lawmakers. “What do you expect? We’re in year four of this. It just happens.”
Sure, what you do about the weather? What can anyone do about the weather? But one should not confuse the metaphor with the thing. Something can be done about this. There is an election coming soon.