Since taking office last week, the Trump administration has fired, demoted, and reassigned career investigators and prosecutors across the Department of Justice, moving rapidly to politicize an institution over which the president has reportedly said he has an “absolute right” to total control, reported Just Security. Much has been said in recent days about the impact of these unprecedented personnel moves on the Department’s independence and continued ability to address urgent national security and public safety threats, not to mention the morale of its workforce. But the ouster of career Department officials creates another, more insidious potential threat: that Trump and his allies will use the Department to hold onto power in future election cycles, as they tried and failed to do in 2020.
As a former Senate investigator, I led the Senate Judiciary
Committee’s investigation into
efforts by Trump and his allies, including then-Acting Civil Division Assistant
Attorney General Jeffrey Clark, to conscript the Department into helping
overturn the 2020 presidential election results. Our investigation laid the
groundwork for the House Select Committee on the January 6 Attack’s (“January 6
Select Committee”) examination of
the same misconduct, and was the
first congressional inquiry to expose Trump’s repeated calls to
Department leaders about the investigations he wanted them to conduct.
We also exposed Clark’s scheme to supplant then-Acting
Attorney General Jeffrey Rosen and insert the Department in the appointment of
swing state electors, along with other efforts by Trump and his allies to use
the Department to overturn the election. By now, the ending of this chapter in
the January 6 story is familiar: after Department leaders threatened mass
resignations in a dramatic Oval Office meeting, Trump backed down from
installing Clark as Acting Attorney General. As then-committee chair Dick Durbin said when
we released our investigative findings, it was only because of “a number of
upstanding Americans in the Department of Justice [that] Donald Trump was
unable to bend the Department to his will.”
The Importance of Norms in Protecting the Department’s Work
from Politics
The Senate Judiciary Committee’s investigation underscored a
basic feature of the nation’s chief law enforcement agency: much of its work is
guided by internal norms, not laws passed by Congress. These norms were put in
place after Watergate to protect the Department’s independence from politics
and ensure its decisions to investigate and prosecute are based only on the
facts and the law. Oversight by Congress and independent Inspectors General can
expose when the Department strays from its norms, but their implementation ultimately
comes down to the principles of 115,000 individual Department employees.
One norm that is central to the Department’s independence is
its longstanding policy
restricting communications between Department officials and the White
House about individual investigations, criminal prosecutions, and civil
enforcement actions. This policy and a companion typically issued by the White
House has been reaffirmed by Attorneys General and White
House Counsels of both parties, and it’s designed to ensure that
federal investigations and prosecutions are driven by facts, not politics. In
2020, these restrictions were flouted by high-ranking officials including White
House Chief of Staff Mark Meadows, who repeatedly
asked Department leaders to open criminal investigations of false
election fraud claims.
The Department’s norms don’t just insulate law enforcement
decisions from politics—they also insulate politics from inappropriate law
enforcement. Federal prosecutors have a well-established, legitimate role in
enforcing criminal laws passed by Congress, including laws that punish the
corruption of government processes (think bribery and fraud) and electoral
processes (think campaign finance violations and ballot fraud). Because of the
sensitivity of these types of enforcement actions, Department
policy typically requires agents and prosecutors to consult with the
Criminal Division’s Public Integrity Section before initiating them. These
consultation requirements help ensure the Department applies the same standards
to similar cases, so a Republican politician is treated no differently than a
Democratic politician who engaged in the same misconduct. More broadly, they
help ensure the Department makes decisions to investigate and prosecute based
on the facts and the law, not politics or other improper considerations.
Norms also play a critical role in ensuring the Department
stays in its lane during elections. The Public Integrity Section’s Election
Crimes Branch has explained in longstanding internal
guidance that the Department’s role in election crime cases is
limited, and that “the Department does not have a role in determining which
candidate won a particular election, or whether another election should be held
because of the impact of the alleged fraud on the election.” This guidance
also recognizes that
“the fact of a federal criminal investigation may itself become an issue in
[an] election”—a reality that undoubtedly motivated Trump’s demand that
Department leaders “just say the election was corrupt and leave the rest to
me.” For these reasons, internal policy makes
clear that “the Department should not engage in overt criminal investigative
measures in matters involving alleged ballot fraud until the election in
question has been concluded, its results certified, and all recounts and
election contests concluded.”
Department officials deviated from this longstanding norm in
2020 at the encouragement of then-Attorney General William Barr. Days after the
2020 election, when claims of a stolen election were in full swing, Barr issued
a memo that
loosened the Department’s longstanding restrictions on taking overt
investigative steps in election fraud matters until the election is certified.
The memo reportedly prompted
objections by current and former Department prosecutors and led the longtime
career head of the Public Integrity Section’s Election Crimes Branch to resign
his position. Over the objection of career officials in the Public Integrity
Section, Barr simultaneously directed federal prosecutors to investigate
certain election fraud claims, including debunked
allegations that Georgia election workers had secretly tabulated
suitcases full of fake ballots. At the time Georgia’s elections had not yet
concluded, with runoff elections scheduled a month later on January 5, 2021.
The extent of the Department’s deviation from longstanding
norms during this period has never been fully examined, in part because the
Department refused to divulge details of its work in response to bipartisan
questioning by Senate staff, and in part because of the January 6 Select
Committee’s understandable focus on Barr’s ultimate
conclusion that there was no election fraud sufficient to alter the
outcome of the election. Barr’s memo was withdrawn in
early 2021, but the fact he issued it in the first place, and the way it
enabled investigations beyond what the Department historically permitted,
underscores how precarious even longstanding norms can be depending on who
leads the Department.
The Purge of Career Officials
The ongoing purge of career officials should worry anyone
who cares about keeping politics out of the Department and the Department out
of the business of deciding elections. Since last Monday, the administration
has fired, demoted, and reassigned career investigators and prosecutors across
numerous Department offices and law enforcement components. Those impacted
include senior leaders in the Department’s Criminal
and National Security Divisions, at least a
dozen career prosecutors previously assigned to Special Counsel Jack
Smith’s investigations, and senior career leaders of the Department’s Executive
Office for Immigration Review, among others.
The mass firing of Special Counsel Smith’s team has gotten
significant attention, and deservedly so, for the message it sends to any
Department employee thinking of investigating or prosecuting misconduct
involving the president. But Americans should be just as alarmed by the reassignment
and demotion of Associate Deputy Attorney General Bradley Weinsheimer,
whose obscure-outside-the-Beltway title and low profile belie his critical role
in upholding the Department’s norms. Until this week, he served as the
Department’s senior-most career official. For decades and across
administrations of both parties, Mr. Weinsheimer and his predecessors in that
role advised Department leaders on ethics and recusal requirements and the
longstanding requirements that keep politics and other improper considerations
out of the Department’s work.
Equally concerning is the reassignment
and subsequent resignation of Corey Amundson, the longtime career head
of the Department’s Public Integrity Section. That office’s apolitical career
prosecutors play an indispensable role in ensuring politically sensitive cases
are handled appropriately, and that the Department doesn’t overstep its role in
election-related matters. The Senate Judiciary Committee’s investigation
revealed that in
at least one instance, Mr. Amundson pushed to restrain the Department from
inserting itself in a 2020 election-related investigation, warning that doing
so “risks great damage to the Department’s reputation, including the possible
appearance of being motivated by partisan concerns.”
The ousters of Mr. Weinsheimer and Mr. Amundson aren’t
surprising, but they should alarm anyone who cares about the Department’s
adherence to norms that uphold the rule of law. Of course, the Department’s
norms aren’t just the province of high-ranking career officials—every
investigator and lawyer must follow them, and the Department is filled with
principled career and non-career employees at all levels who do. But the
ongoing purge of the very officials responsible for policing those norms
signals to the Department’s entire workforce that their jobs are at risk if
they, too, prioritize rules that keep politics out of law enforcement.
In 2020, Trump tried and failed to use the Department to
hold onto power. Although some Department officials strayed from certain norms,
enough principled individuals took a stand when it mattered. He is now ousting
the apolitical career officials responsible for ensuring the Department upholds
its norms and traditions of independence. In doing so, he is laying the
groundwork not only to use the Department for his own personal, political goals
throughout his administration, but also to succeed in doing in the next
election what he failed to do in 2020.
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