The President vs. Federal Law Enforcement

By Benjamin Wittes, Lawfare

25 July 17

This story originally ran July 20, 2017, the day after Trump's comments in the New York Times interview became public.

resident Trump yesterday issued a stunning vote of no-confidence in basically everyone currently in a leadership position in the Justice Department, the FBI, or the special counsel’s office—in other words, not just some federal law enforcement, but all of it. The President’s rebuke comes in a lengthy interview with the New York Times yesterday, and it reaches everyone from the attorney general to staff attorneys hired by Robert Mueller—whose investigation he pointedly did not promise not to terminate. His complaint? They’re all, in different ways, not serving him. And serving him, he makes clear, is their real job.

It’s a chilling interview—chilling because of the portrait it paints of presidential paranoia, chilling for its monomaniacal view of the relationship between the president and law enforcement, and chilling for what it says about Trump’s potential readiness to interfere with the Mueller investigation.

If Attorney General Jeff Sessions does not resign this morning, it will reflect nothing more or less than a lack of self respect on his part—a willingness to hold office even with the overt disdain of the President of the United States, at whose pleasure he serves, nakedly on the record.

The president is evidently distraught at Sessions’s recusal from the Russia investigation “right after he gets the job.” (Sessions recused himself on March 2—three weeks after his swearing-in and fifteen weeks after his nomination.) The Attorney General gave the president “zero” heads up, Trump says. In Trump’s view: “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else.” He twice describes Sessions’s decision as “unfair to the president,” seemingly unaware that his recusal was almost surely compelled by Justice Department recusal rules. That is, the President is openly expressing bitterness toward his attorney general for following the rules—because the rules don’t favor Trump’s interests. He wants an attorney general who will actively supervise the Justice Department, and the Russia investigation, in a fashion congenial to his interests, and he has no compunction about saying so explicitly. He made perfectly clear that he regrets appointing Sessions. He made equally clear that Sessions’s job is, in his mind, a personal service contract to him and that if Sessions couldn’t deliver on service to Trump, he shouldn’t have taken the position.

To add insult to injury, Trump also heaped scorn on the then-nominee’s inability to give satisfactory answers about his meetings with Russian Ambassador Sergey Kislyak during his confirmation hearing—on which he blames the recusal. “Sessions gave some bad answers,” he said. The president went on: “He gave some answers that were simple questions and should have been simple answers, but they weren’t. He then becomes attorney general, and he then announces he’s going to recuse himself. Why wouldn’t he have told me that before?”

Sessions has hardly shrouded himself in glory over the past few months, but it is wildly improper for the President to talk about the attorney general in this fashion. The attorney general serves at his pleasure. If he is dissatisfied with Sessions’s performance, Trump can remove him. Unlike the FBI director, Sessions does not have a ten-year term that creates some normative expectation of retention. It would be, of course, inappropriate to fire the attorney general for having the temerity to follow Justice Department recusal policies on the advice of career lawyers, but it’s also inappropriate to whine publicly about his conduct without removing him. For those who need a reminder, the proper thing for a President to say publicly about a recusal in a live investigative matter—one that involves him directly and personally—is nothing whatsoever.

But Trump was just getting started in his attacks on federal law enforcement with his comments about Sessions. Moving down the Justice Department chain of command, the President is also cool toward Deputy Attorney General Rod Rosenstein, describing Sessions’ recusal as causing the president to “end up with a second man.” He distances Rosenstein from both himself and Sessions: he declares that “Jeff hardly knew” Rosenstein and characterizes Rosenstein as “from Baltimore” before noting, “There are very few Republicans in Baltimore, if any.” (Rosenstein did work in Baltimore in his capacity as the U.S. Attorney for Maryland, but he grew up in Pennsylvania.)

Trump’s beef with Rosenstein is, of course, the deputy attorney general’s appointment of Robert Mueller as special counsel. He points to “conflicts” in Rosenstein’s role: that Rosenstein both recommended Comey’s firing and now is “involved in the case.” This frustration seems to be long-running: Trump made a similar point on Twitter last month, writing, “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” While Trump has previously admitted that Rosenstein’s memo criticizing Comey was pretextual and that the president would have dismissed the FBI director regardless, yesterday he hedged, saying, “Now, perhaps I would have fired Comey anyway, and it certainly didn’t hurt to have the letter, O.K.”

Then there’s Mueller himself. The president declares bluntly, “I have done nothing wrong. A special counsel should never have been appointed in this case.” And he regards Mueller as conflicted because he was briefly considered to replace Comey.

Trump describes his meeting with Mueller while interviewing him for the job of FBI Director as “wonderful” and says that “of course … he wanted the job.” And he seems to regard this as some kind of conflict of interest on Mueller’s part. Trump does not seem to understand or even be able to imagine that Mueller might have been talking to him out of a sense of public service, not personal interest, with respect to an agency he had led for a long time and treasures and which Trump had plunged into crisis.

“Talk about conflicts? But he was interviewing for the job.” Trump also hints at knowledge of additional, as-yet-unreported conflicts on Mueller’s part, stating, “There were many other conflicts that I haven’t said, but I will at some point.” Following his appointment as special counsel, ethics officials at the Justice Department declared Mueller free of conflicts on the matter of his prior work with WilmerHale, which also employs counsel for Jared Kushner, Ivanka Trump, and Paul Manafort.

Nor did the President stop at Mueller personally. He also went after his staff. In response to a question about whether he would consider dismissing Mueller, he declared, “Look, there are so many conflicts that everybody has.” Previously, the president has alleged that other members of the Mueller’s staff have conflicts of interest, stating last month on Fox & Friends that “the people that have been hired are all Hillary Clinton supporters, some of them worked for Hillary Clinton.” At least three members of the special counsel’s team have given money to Democrats and two gave the legal maximum to Hillary Clinton during the 2016 election, though Mueller himself was a registered Republican at the time of his FBI Directorship and has been widely described as apolitical.

And to top it off, the President apparently feels no compunction either about commenting on the proper scope of Mueller’s investigation substantively. When asked whether a potential investigation of the Trump family finances “unrelated to Russia” would constitute a “red line” in the investigation, Trump stated, “I think that’s a violation.” And he didn’t say no when asked whether such conduct would lead him to fire Mueller; rather, he hedged, stating that “I can’t answer that question because I don’t think it’s going to happen.”

Trump still wasn’t done. It’s not just the special counsel investigating him, his staff, the attorney general, and the deputy attorney general with whom the President of the United States has a beef. It’s also the FBI leadership—or that part of it, anyway, that he hasn’t already fired.

Trump was sharply critical of Acting FBI Director Andrew McCabe on the grounds that McCabe’s wife received money from political organizations connected to Virginia Governor Terry McAuliffe, a Democrat, in support of her 2015 campaign for Virginia state Senate. The president uses this connection to suggest some partisan bias on McCabe’s part: “We have a director of the F.B.I., acting, who received $700,000, whose wife received $700,000 from, essentially, Hillary Clinton. ’Cause it was through Terry [McAuliffe]. Which is Hillary Clinton.”

The president’s point is somewhat unclear here, as he then jumps to a condemnation of Hillary Clinton’s conduct related to the FBI investigation into her private email server. But this is not the first time that he has used this line of attack against McCabe. In James Comey’s written statement provided to the Senate Intelligence Committee before his testimony, Comey describes a phone conversation in which the president informed Comey that “he hadn’t brought up ‘the McCabe thing’ because I had said McCabe [then Comey’s deputy] was honorable, although McAuliffe was close to the Clintons and had given him (I think he meant Deputy Director McCabe’s wife) campaign money.” Senate Judiciary Committee Chairman Charles Grassley (R-IA) voiced a similar criticism of McCabe during the confirmation hearing for Christopher Wray as FBI Director.

If, on reading this, it sounds like the President believes that law enforcement should be at his personal beck and call, that’s because that is, in fact, exactly what he believes. We know this because he made this belief perfectly clear in the interview as well. At one point, he offered an extraordinary account of the history of the FBI and its relationship to the Justice Department. He indicated that around the time of the Nixon administration, “out of courtesy, the F.B.I. started reporting to the Department of Justice.” He continued: “But there was nothing official, there was nothing from Congress. There was nothing — anything. But the FBI person really reports directly to the president of the United States, which is interesting. You know, which is interesting.”

Indeed.

Trump’s logic isn’t easy to follow here, but his core claim is unmistakeable—and “interesting” is a generous word for it: the FBI director serves the president. As a matter of constitutional hierarchy, this is of course true. But in investigative matters, the FBI director does not, or should not, serve the president by reporting to him. He serves the president by leading law enforcement in an independent and apolitical fashion. And it is fundamentally corrupt for any president to be asking him to do otherwise.

As for the convoluted rationale he uses to get to this corruption, well, suffice it to say that Trump’s suggestion that the FBI voluntarily began reporting to the Justice Department around the Nixon era betrays a fundamental misunderstanding of the wave of critical Bureau reforms during that time. These were implemented shortly after Watergate and other scandals brought to light the FBI’s abusive and unlawful activities during the 48-year reign of Director J. Edgar Hoover.

Those reforms were, of course, designed to preclude exactly the kind of power relationship to which Trump now lays claim. In a foundational 1978 speech that has shaped subsequent Department policy, Jimmy Carter's attorney general, Griffin Bell, affirmed the independence of the Justice Department and its constituent entities, including the FBI. Bell declared, “it is improper for any Member of Congress, any member of the White House staff, or anyone else, to attempt to influence anyone in the Justice Department with respect to a particular litigation decision, except by legal argument or the provision of relevant facts.”

The astonishing implication of Trump’s view is that he believes the president may shut down an FBI investigation that displeases him. Indeed, Trump went so far as to say that too: when explaining why it would not be a problem even if he had told Comey to drop the Flynn investigation, he stated, “other people go a step further. I could have ended that whole thing just by saying—they say it can’t be obstruction because you can say: ‘It’s ended. It’s over. Period.’”

In an environment in which the President of the United States, in a single interview, expresses no-confidence in the attorney general, the deputy attorney general, the special counsel, the acting FBI director, and the special counsel’s staff, and in which he makes clear that the FBI should be his personal force and that all of law enforcement should be about serving him, the principle protection is having people with backbone who are willing to do their jobs and stand up for one another in the elevation of their oaths of office over political survival.

Unfortunately, the signs are not particularly encouraging on this front. Even as the President was attacking him to the Times, Rosenstein was busy giving an interview to Fox News that won’t reassure anyone on Mueller’s staff that the acting attorney general is the man with whom to share a foxhole. After confirming that he stands by his recommendation to fire Comey and clucking about the confidentiality of memos, Rosenstein gave a lukewarm response to questions about Mueller’s staff. While Rosenstein defended his decision to appoint Mueller, he did not splash cold water on the notion that his staff may be compromised by political contributions. In response to MacCallum’s insinuation that “some of the attorneys he has hired ... have made donations to the Clinton campaign” and a question about whether this “bother[s]” him, Rosenstein passed up the chance to express confidence in a staff that ultimately reports to him. Instead, gave this ominously puzzling answer: “The Department of Justice, we judge by results. And so my view about that is, we'll see if they do the right thing.”

We are in a dangerous moment—one in which the President, with his infinite sense of grievance, feels entitled publicly to attack the entire federal law enforcement apparatus, and that apparatus, in turn, lacks a single person with the stature, the institutional position, and the fortitude to stand up to him. Sessions has not done so. While Rosenstein did the country an enormous service when he appointed Mueller, he acted as an enabler of the Comey firing in the first instance and did not do himself credit yesterday. Mueller certainly has the stature, but by the nature of his position he cannot say anything publicly; he is investigating the President and thus cannot also confront him. And McCabe, who has been both able and courageous in the aftermath of Comey’s firing, is in an acting capacity.

The man who had the stature, the institutional position, and the moral fiber to confront the President on such matters was Comey, who is no longer there and whom the President also slimed in his interview yesterday.

The result is an environment in which the President can say these things without obvious consequence, at least for now. Rosenstein or Sessions could change that today. If they were willing to be touched by greatness even for a moment, they would resign together with a strong statement in defense of the integrity of federal law enforcement, the men and women who carry it out, and the processes under which they work. That’s what people with honor would do in this situation.

Don’t hold your breath.