Opinion | Protect the Justice Department From the President


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This week, more than 2,000 former officials of the Justice Department and the F.B.I. called on Attorney General William Barr to resign for dropping the prosecution of Michael Flynn, who had pleaded guilty to lying to the F.B.I. when he was President Trump’s national security adviser.

“Subsequent events strongly suggest political interference in Flynn’s prosecution,” the former officials said in an open letter published online. They condemned Mr. Barr for having “once again assaulted the rule of law,” in light of his earlier decision to overrule career prosecutors and seek a lighter sentence than what they had recommended for another Trump associate, Roger Stone.

It’s easy to grow numb to the abuses of the Trump era. But Mr. Barr’s intervention in the Flynn and Stone cases is a deviation even from the standards at the outset of Mr. Trump’s presidency. The corrosion at the Justice Department from the beginning to the homestretch of Mr. Trump’s first term illustrates a long-term problem of maintaining the independence of a department with unrivaled powers of investigation and prosecution.

More troubling, as recent history has shown, there are no easy ways to rein in an attorney general whose loyalty to a president stands ahead of his fidelity to the rule of law.

Jeff Sessions, Mr. Trump’s first attorney general, followed the advice of career professionals at the Justice Department by recusing himself from the F.B.I’. s investigation of the Trump campaign’s ties to Russia in 2016. He did so because of his own meetings with Russia’s ambassador while he was advising the campaign. Mr. Sessions’s recusal opened the door for his deputy, Rod Rosenstein, to appoint the special counsel Robert Mueller to investigate Russian campaign interference after Mr. Trump fired James Comey, the F.B.I. director. By doing so, Mr. Rosenstein allowed a federal investigation into the campaign of a sitting president to proceed. While Mr. Trump repeatedly inveighed against the Mueller investigation, its work continued, upholding a crucial norm of Justice Department independence, however uneasily.

Then Mr. Barr became attorney general. Establishment figures in Washington hoped he would check Mr. Trump, given his deep experience in the Justice Department, including two years as attorney general under President George H.W. Bush. Instead, Mr. Barr muffled the impact of the special counsel’s final report on Russian interference in the 2016 campaign by suggesting that it absolved Mr. Trump when it did not. A federal judge later called Mr. Barr’s comments “misleading” and said “his lack of candor” about the report called into question his “credibility.”

Mr. Barr also opened a criminal investigation into the origins of the Russia investigation, despite the conclusion of his department’s inspector general that the F.B.I. had adequate reason to proceed. His department declined to investigate the whistle-blower complaint about the president’s phone call last July with President Volodymyr Zelensky of Ukraine. That decision led dozens of government inspectors general to warn that the Justice Department “could seriously undermine the critical role whistle blowers play.” Then came Mr. Barr’s interference in the long-running Stone and Flynn prosecutions, both times fulfilling Mr. Trump’s stated desires and serving his political interests.

The attorney general, whom the president hires and can fire, is supposed to advise the president and advance his or her policies. But he is also obligated to enforce the law impartially and not to use it to shield the president’s allies or punish his enemies.

After its inception in 1870, the Justice Department cycled between periods of cronyism and professionalism. The problem of cronyism was on full display in Watergate. President Richard Nixon’s attorney general, John Mitchell, was jailed for his role in the scandal. Hoping to clean up the department, President Gerald Ford appointed Edward Levi, the president of the University of Chicago, who was widely regarded for his integrity. Mr. Levi boosted morale and professionalism at the Justice Department and reined in the F.B.I., whose abuses had badly tarnished the reputation of that agency.

But there was no guarantee that attorneys general who followed Mr. Levi would uphold his standards. So in 1978, Congress passed a law that created an independent counsel, whom the attorney general could authorize to investigate top executive-branch officials for wrongdoing. Because the counsel was chosen by a three-judge panel and could be removed only for cause, the counsel operated beyond the influence of the president and the attorney general. The law addressed the competing loyalties inherent in the job of attorney general by walling him or her off from certain investigations.

But Congress let the law expire in 1999 as both parties tired of independent counsels they saw as abusing their powers. Without this external watchdog, the stage was set again for conflict between politics and the rule of law. John Ashcroft, George W. Bush’s first attorney general, resisted some of the Bush administration’s claims to broad executive power in the wake of Sept. 11. But Mr. Ashcroft’s successor, Alberto Gonzales, was a longtime Bush crony who resigned after repeated battles with Congress raised questions about whether his responsibilities to the law took a back seat to his loyalty to Mr. Bush.

President Barack Obama appointed an ally with his own professional reputation, Eric Holder, as his first attorney general, and a career prosecutor, Loretta Lynch, as his second. Ms. Lynch found herself mired in controversy for talking to former President Bill Clinton on an airport tarmac while his wife was under investigation for mishandling classified information. Ms. Lynch’s breach seems minor now but led her to defer the decision whether to prosecute Hillary Clinton to the F.B.I. and her aides. The norm of independence held.

Now we have Mr. Barr. The next president could reassert that standard by appointing someone in the mold of Edward Levi. But history suggests that too often presidents prefer an attorney general whom they can control.

Will Congress be able to step in? Not fully, it seems.

Democrats in the House investigated Mr. Trump’s dealings with Ukraine when Mr. Barr’s Justice Department declined to do so, but they didn’t have a clear path for compelling witnesses to testify, as a prosecutor would. And if the attorney general is willing to drop charges against an executive-branch official like Mr. Flynn, who lied to the F.B.I., then what’s to stop him from refusing to prosecute officials who lie to Congress? This week, the Supreme Court heard arguments in two cases about whether Congress can subpoena the president’s tax returns. The back-and-forth hinted that the court could erect new barriers for Congress when it seeks to keep the executive in check.

This suggests that Congress erred by allowing the independent counsel statute to expire. The potential that political considerations could warp decisions by the president and attorney general require this extra check on the executive branch. The best way to stop the downward spiral of the Justice Department is to protect it from its own boss.

Emily Bazelon is a staff writer at The New York Times Magazine and a fellow for creative writing and law at Yale Law School. Eric Posner is a professor at the University of Chicago Law School and the author of the forthcoming “The Demagogues’ Playbook: The Battle for American Democracy From the Founders to Trump.”

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