Defund the Department of Justice?

Another round of illegal leaks concerning yet another investigation into former President Donald Trump.  Another round of speculation in the media that the walls are closing in, and all the while Attorney General Merrick Garland and his boss, President Joe Biden, continue hiding behind the idea that they can’t comment on ongoing investigations, only leak about them.

Anyone who believed the Justice Department was capable of conducting impartial investigations into political figures in the wake of the unprecedented raid on Donald Trump’s Mar-a-Lago residences recently had their hopes demolished by a fresh round of leaks concerning yet another Trump investigation.  The New York Times reported that around 40 new subpoenas have been issued related to the 2020 election and the riot at the Capitol Building on January 6.  These subpoenas include a number of associates of former President Donald Trump.  Dan Scavino, former social media director.  Stephen Miller, Brian Jack, and William Russell former advisors.  Boorish Epshteyn and Mike Roman, also advisors, had their phones confiscated as well.  The Trump 2020 campaign was another target including Chief Financial Officer Sean Dollman, and Chief of Staff to Ivanka Trump, Julie Ratford.  The Time’s reporting suggests these investigations are seeking information about the submission of electors pledged to President Trump in swing states President Joe Biden won, despite that this is not illegal in the least.  State legislatures are free to do precisely that in almost all cases.  Some have taken issue with the timing, the wave of subpoenas having occurred shortly after President Biden declared MAGA Republicans a threat to the future of the Republic.  “It should surprise no one that days after Biden declared Trump supporters a ‘threat’ to democracy, his admin goes after those very same supporters & Save America PAC, which is committed to Make America Great Again,” Trump spokesman, Taylor Budowich tweeted. “Biden is using government to divide & destroy this nation.”

Predictably, the talking heads of the media have seized on these reports as yet another excuse to inform us the walls are finally closing in on the former President.  CNN’s Stephen Collinson nicely summarized this view.  “A strikingly broad subpoena sweep against more than 30 former officials and campaign aides of ex-President Donald Trump represents the clearest sign yet of the seriousness of the Department of Justice’s criminal probe into events surrounding the US Capitol insurrection.”  After admitting that “Trump has not been charged with a crime in either probe,” Mr. Collinson continued to declare “the subpoenas show that the DOJ’s investigation, which has proceeded behind the scenes for months and caused Trump critics to express frustration with Attorney General Merrick Garland, is far more expansive than was previously known. And it appears to be intensifying, with investigators apparently narrowing their focus based on other subpoenas, evidence and witness testimony.”  He quoted the former chief of the Justice Department’s Counterintelligence and Export Control Section, David Laufman.  “This is the way classic investigations are conducted, moving up the chain so to speak…They are now encompassing individuals closer and closer to the President to learn more and more about what the President knew and when he knew it.”  How he could say that without even knowing what crime might have been committed is more than slightly confusing.  Nor did the lack of a crime prevent Mr. Collinson from concluding, “The twice-impeached former President has typically been successful at wriggling free of legal scrutiny and scandals that would long have ended the careers of conventional politicians. But it is clear that he is facing legal concerns on multiple fronts, some related to his attempt to overthrow the result of the 2020 election, and all in some ways arising from his view that as president, and even back in civilian life, his position granted him almost unlimited power free of scrutiny.”

Perhaps needless to say, these same talking heads in the chattering classes are not remotely interested in where this information comes from.  A month ago, Attorney General Merrick Garland solemnly declared that the Department of Justice speaks through their court filings and insisted they would make no more comments on the matter.  Some of the very same people who applauded him for his insistence on supporting the long-standing democratic norm of not talking about ongoing investigations, are now broadcasting obvious leaks with the sole purpose of impugning President Trump, casting a cloud of aspersions without any evidence or even the accusation of a specific crime.  I’d say it’s unprecedented, but it has become standard practice since Trump arrived on the political scene, when reports by those “familiar with the matter” and “have knowledge” of the situation dominate the headlines, even as those in power continue to claim comments on ongoing investigations are forbidden by policy, law, and custom.

At this point, it’s worth considering why this standard was put in place in the first place.  Why does the Justice Department and prosecutors in general refuse to comment on ongoing investigations?  There are two primary reasons.  First, many investigations do not result in actual charges, but the mere announcement of an investigation leads people to believe rightly or wrongly that something illegal might have occurred.  The accusation of a crime, especially for a public figure, threatens to undermine their credibility, negatively affect their reputation, and cause people to believe they are guilty of something that might not be true.  Grand juries are held in secret as well, for the very same reason.  If no charges are filed, the public should not know that someone was under investigation.  This is what Attorney General Garland meant when he said the Justice Department speaks through court filings:  Rather than cast damaging aspersions without any consequence, they put their money where their mouth is so to speak and actually bring the charges so the matter can be dealt with in open court.  Perpetual leaks, of course, undercut that entire principle:  They cast many an aspersion, generate stories in the media, and make it look like a charge may be imminent, but they aren’t obligated to actually make their case in court.

The second reason is that many investigations are conducted into potentially ongoing crimes.  When the FBI or a local prosecutor targets a network of drug dealers, the mob, racketeers, smugglers, or any other organized crime syndicate, they usually have to build their case from the ground up and the process can take years from start to finish.  This the “way classic investigations are conducted, moving up the chain so to speak,” as Mr. Laufman put it.  The front lines of the targeted crime ring are arrested first, then flipped against the higher ups in exchange for more lenient sentences or immunity.  This should be familiar from anyone who has seen 10 minutes of The Wire.  Of course, this process only works if those higher ups do not realize their organization has been infiltrated.  Announcing an investigation publicly would do precisely that and thwart the goal from the beginning.  There are, of course, some investigations into crimes that have already been committed where maintaining secrecy would be helpful.  Alerting a potential murder suspect you are close to bringing charges could increase the flight risk.  There is also the risk of a suspect destroying evidence, tampering with potential witnesses, or otherwise obstructing justice.  This, combined with the above, makes a compelling case for the secrecy policy, but, perhaps needless to say, none of this thinking applies when the existence of the investigation is broadly known, reported on, and speculated about in the media.

Sadly, this is precisely the situation the Justice Department has created with President Trump.  Everyone knew he was under multiple investigations long before the raid on Mar-a-Lago, when they shouldn’t have.  They knew this only because Justice Department’s own investigators have been leaking information to the media with impunity and no effort has been made to staunch the bleeding.  This, of course, leads some to conclude that the leaks are precisely what the leadership at the Justice Department wants.  Michael Goodwin, writing for The New York Post, described it:  “The extent of that involvement is dribbling out, with the usual legacy media outlets getting leaks from anonymous sources who are said to be ‘familiar with the matter’ or ‘have knowledge’ of the situation.  Translation: Justice Department aides aren’t afraid they’ll be prosecuted for leaking grand-jury and other supposedly confidential information. They know they are on the politically protected team.”  The result is two fold:  A constant media firestorm complete with reports that the walls are closing in, a refrain repeated breathlessly for more than 4 years, and a segment of the population that believes Trump must be guilty of something.  Why would there be constant investigations if he’s done nothing wrong?

There is another, ancillary effect:  The segment of the population that believes Trump must be guilty of something has increasingly demanded charges be filed.  You cannot cry wolf forever, putting pressure on the Department of Justice to come up with something, anything to appease this wing of the progressive movement.  Even worse, the party that houses this wing is in control of the Justice Department itself, leading many to believe that charges will soon be filed, whether or not they are justified.  Mr. Goodwin summed up this position, the “broad labeling of Trump supporters as a ‘ threat to democracy’ takes on a far more sinister dimension when the FBI gets involved…The new fronts in the attack make it seem inevitable that Trump will make presidential history again by being hit with criminal charges, perhaps numerous ones. It also seems likely that such charges could come before the fall elections.  Justice generally follows self-imposed guidelines that require prosecutors to steer clear of politically sensitive cases within 60 days of an election. But as with most things involving Trump, standards and rules are being trashed under the justification that he broke political norms.  Such hypocrisy would be comical if the stakes weren’t so high. The assault on Trump is so far out of proportion to events that you don’t have to agree with him that the election was stolen to suspect he is being targeted for political reasons more than criminal ones.”

The Justice Department could help clear things up by offering a modicum of transparency, clarity, and the resulting accountability.  At this point, these investigations aren’t occuring in secret as they should be and there is no reason not to comment publicly.  Rather than vague leaks to the media suggesting the walls are closing in as they have been for six years running, Attorney General Garland could clearly describe what crimes they believe have been committed, summarize the evidence he has now, and what else they are looking for.  This would enable fair minded people to make a reasonable judgment whether these investigations are truly warranted, and it would eliminate the suspicion this is merely a politically motivated witch hunt akin to Joseph Stalin’s old dictum, you show me the man, I’ll show you the crime.  Otherwise, those fair-minded people have every reason to be skeptical if the ultimate charges are process related crimes like obstruction of justice or lying to the FBI, believing the entire investigation’s goal was essentially to entrap the former President and key figures in his administration by tying them up in an endless loop, waiting for them to say something inaccurate or fail to disclose something that would never have been asked for without the investigation in the first place.  Perhaps needless to say, the cynic in me can’t help but conclude this is the entire point.  I can think of no reason they would repeat the vicious cycle of endless leaks accompanied by refusals to comment if the goal was not merely to keep the investigation going indefinitely until they come up with something, anything.  There is even some evidence for that in its absence during President Trump’s first impeachment and the Hunter Biden laptop scandal.  Mr. Biden was under investigation the entire time and had been for years, but not a soul in the Justice Department leaked a single word of it, despite months to do so.  How do you account for such a radical difference in the treatment of cases that touch on political matters, leaks for Republicans and the Orange Man, yet none for Democrats?  Putting this another way, these leaks only seem to run in one political direction.

Regardless, leaks are illegal.  It is only institutional rot and political bias that allows them to continue to impugn the former President with no consequence.  It is also the Attorney General’s prerogative to choose not to provide transparency and clarity, fully knowing the stories that are circulating in the media based on the leaks of his own staff, and then pretending he can do nothing to clear things up.  Attorney General Garland is the person in charge and has made a choice to side with the leakers, using the power of his office against a former President and potential political opponent rather than enforcing the relevant protocols and laws.  If the Republicans take control of the House of Representatives in January 2023 as they are expected to, they will have the power to make demands of their own.  These demands should be simple:  Complete, total, and unfettered transparency into every investigation related to Trump.  Immediately and irrevocably, or they will wield the power of the purse to force a clearly out of control Justice Department into submission.  Defunding might seem a radical idea on the surface, but why should one party continue to fund investigations into its de facto leader while remaining aware that the Attorney General can fix this anytime he likes?  If the Attorney General Garland and his boss, President Biden, want to continue in his manner let them both deal with the consequences.  Impartial justice is not justice.  An impartial justice department has no place in our system.  Yes, there will be consequences, but the buck stops with Biden and the choice how to proceed will be his.  Republicans are under no obligation to fund his personal and political vendettas, and should say exactly that:  Clean up your mess or we will take away your toys. 

To some extent, this post could be considered hyperbole, but really, why not? Progressives rage against every institution that doesn’t do their bidding.  Surely, if we can ignore, pack, or otherwise dismantle an illegitimate Supreme Court because it refuses to bow to their will, we can do the same with the Department of Justice, right?

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