Donald Trump and the Rule of Law

By Jeffrey Toobin, The New Yorker

07 January 18

here’s been a bomb cyclone of revelations from and about the White House since New Year’s Day. But there’s a pattern. It all stems from President Trump’s contempt for the rule of law. The week began with a tweet from the President that, in a quasi-normal political environment, would have led to an impeachment investigation.

Richard Nixon earned eternal disgrace for keeping a list of his political enemies, but he, at least, was ashamed enough of the practice to know that he had to keep it secret. Trump, in contrast, is openly calling for the Department of Justice, which he controls, to put his political opponents in jail. This kind of behavior is a trademark of the authoritarians he admires, like Vladimir Putin and Recep Tayyip Erdoğan. It would be disgraceful under any circumstances, but it’s especially grotesque given that there’s no evidence that Abedin did anything unlawful. (A newly reopened investigation of the Clinton Foundation represents another attempt by the Administration to use law enforcement to harass his opponents.) In a similar vein, congressional Republicans last week invited the Justice Department to investigate Christopher Steele, the British former intelligence official who compiled an early dossier on potential contacts between Trump and Russia.

Also last week, the Times reported more evidence suggesting that the President had obstructed justice in connection with the F.B.I.’s investigation of Russian interference in the 2016 election and any possible connection to members of the Trump campaign. In March, according to the Times, Trump sent Donald F. McGahn II, the White House counsel, to urge Jeff Sessions, the Attorney General, not to recuse himself from supervising the investigation. Trump did so because he felt that Sessions should be protecting him. “Where’s my Roy Cohn?” Trump asked, referring to the right-wing gargoyle who was one of his early political mentors. Sessions, a key figure in the Trump campaign, recognized the obvious fact that he could not investigate the Trump campaign, and properly rebuffed McGahn, but Trump’s malign obsession with the Russia case remains a touchstone of his Presidency.

The Times’ revelation makes an obstruction case stronger. Trump asked for loyalty from James Comey, the F.B.I. director, who was supervising the investigation. When Comey equivocated, Trump fired him, then put out a false story for why he did so, which he promptly undermined by admitting the real reason. And when e-mails emerged over the summer showing that Donald Trump, Jr., had met during the campaign with a Russian lawyer offering dirt on Hillary Clinton, the President participated in concocting a bogus story to explain them. (An especially incriminating version of Trump’s role in the e-mail cover story appears in “Fire and Fury,” Michael Wolff’s explosive new book.)

Trump’s contempt for the rule of law infects his entire Administration, as illustrated by Sessions’s newly announced guidance on marijuana policy. Under President Barack Obama, the Department of Justice allowed states to come up with their own policies on pot, which Washington and Colorado legalized, to benign effect. Not surprisingly, more states are following those successful experiments. Still, Sessions this week invited local United States Attorneys to make up their own policies on when and whether to prosecute marijuana cases. This would be a recipe for chaos in any circumstance, but it’s especially appalling because Trump has nominated, and the Senate has confirmed, so few U.S. Attorneys. There are positions for ninety-three U.S. Attorneys, but Trump has nominated people to fill only fifty-eight of them, and the Senate has confirmed just forty-six.

But, under the new policy, in much of the country federal marijuana enforcement will be run by officials who are only accountable to Sessions and Trump, not to the broader public. Senators have a right to ask prospective U.S. Attorneys how they plan to enforce federal law on marijuana, and, of course, the legislators have the right to vote these officials down if they don’t like their answers. But Sessions has installed acting U.S. Attorneys in much of the country—including in such high-profile locations as Manhattan and Los Angeles—and senators can’t exert any oversight of them. This gesture of contempt for the Senate’s role in confirmations is reflected well beyond the Justice Department. Throughout the government, Trump has nominated many fewer officials to Senate-confirmed positions than his predecessors; instead, Cabinet secretaries have filled these crucial positions with acting or temporary officials who avoid scrutiny from senators. It’s another example of Trump’s disdain for the norms that have been observed by his predecessors. Trump’s Presidency may look like a series of chaotic lurches. But there is, alas, madness to his method.