Tag Archives: Department of Justice

Preliminary thoughts on Mueller’s Judiciary Committee testimony

24 Wednesday Jul 2019

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By Frank Bowman

I may have more to say later, but Robert Mueller’s testimony this morning before the House Judiciary Committee generated a couple of off-the-cuff reactions.

First reactions

An hour or so in, I’d say this is going about as I expected. Mueller is rigidly insisting on not going one inch beyond the report. The Republicans are avoiding talking about what’s in the report, focusing instead on conspiracy theories about the origins of the investigation. 

Two modest surprises for me:

1) Mueller himself is more halting and less commanding than I might have expected. Part of this, I think, is that he is so committed to sticking with the report that he’s not focusing on the substance of the questions and answering them on their merits — as would be true for ordinary witnesses or for Mueller himself in any other situation. Instead, he is measuring every question by only two metrics: first, can I answer simply by referring to the report, and second, can I decline to answer at all on the ground that the question asks about internal special counsel or DOJ deliberations. That’s an artificial and unnatural way of thinking about questions, and it makes him seem indecisive.

(I should say in passing that, on many points where Mueller refused to answer, it’s not at all clear that he had any legal right or privilege to do so. It’s hard to imagine any other witness being given this degree of deference on what questions he will or won’t answer. But neither party elected to spend the time or energy to press him. Hence, the Committee, and the rest of us, got no more or less than Mueller wanted to talk about.)

2) Although the media may not score the Democrats very well on their performance today, so far the Democratic members have displayed a pleasantly surprising degree of discipline in walking Mueller succinctly through the major factual components of the obstruction case against Trump. In another era – the era of Watergate for example – the facts they are highlighting would be devastating to a president. But because the facts are detailed and because the attitude of the committee Republicans is that there’s nothing to see here (an attitude that will be reinforced by Fox and other pro-Trump media), these crushingly incriminating facts are unlikely to perceived as such by anyone not already convinced going into the hearing.

Republicans attack Mueller’s team and with it, the Dept of Justice

Towards the end of the hearing Republican Cong. Armstrong raised questions about the apparent political affiliations of Mueller’s team — i.e., 14 of them seem to have donated to democratic political candidates — in an effort to argue that Mueller’s investigation was fatally biased.  

Although this sounds like a plausible line of inquiry, it totally distorts the basic ethos of federal prosecutors, which is that DOJ does not inquire about prosecutors’ political affiliations.  It judges them on their body of work, and it presumes, in the absence of affirmative contrary evidence, that regardless of political leaning or affiliation, prosecutors will pursue the facts and the law wherever they may lead.  DOJ has a long history of impartiality that supports this operating assumption.

The Repub line of attack here implies an absurd rule going forward — that only Republicans or unaffiliated independents can investigate Republicans, and only Democrats or unaffiliated independents can investigate Democrats. Adoption of such a rule, or operational guideline, would shake the foundation of the Department’s professional code and internal esprit.

More importantly, the Republicans are actively contributing to the public’s already-growing distrust of government and the impartiality of justice itself.  There is, in fact, no evidence that Mueller and his team shaded their efforts or their report against Trump & Co.  To the contrary, they treated him with kid gloves relative to regular defendants. And in his report, Mueller bent himself into linguistic pretzels to avoid saying what the evidence proved – namely that Trump obstructed justice.  By attacking Mueller (a lifelong Republican) and his team this way, the Republicans are actively eroding the confidence of the American public in their government — indeed in the very possibility of impartial administration of the law.  Republican members may think this is to their advantage in the short term, but it’s corrosive, and we will all live to regret their short-sighted selfishness. 

That said, I confess to thinking Mueller notably inept in his defense of his own people and of the traditions of the Justice Department.  This line of questioning was easily foreseeable, and Mueller should have had a devastating response ready.  That he didn’t suggests two things about him: First, he is still, stubbornly, living in the world he (and I) grew up in, one in which the honor, probity, and professional competence of long-serving federal law enforcement officers was accepted by both political parties.  Second, he’s gotten old. He simply can’t respond quickly, either with spontaneous argument or even with pre-prepared speeches

Rosenstein Spared

09 Tuesday Oct 2018

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It has been reported that President Donald Trump has no intention of firing Deputy Attorney General Rod Rosenstein. There was some speculation that a firing or resignation would occur after it was reported by the New York Times that Rosenstein had discussed removing the President via the 25th amendment and recorded him secretly, though Rosenstein denied both allegations. Now, after a nice flight the two shared to Florida, Trump announces that he doesn’t intend to make any changes to the Justice Department.

This is surprising, considering the menagerie of firings Trump has collected throughout his campaign and administration.  However, there was some speculation that firing Rosenstein could amount to obstruction of justice, and with midterms looming, it may be that Trump is looking to avoid another scandal. This issue very well may resurface after November.

SUM7NGGLJUI6RI7GITNKHU263Y.jpgMandel Ngan/AFP/Getty Images

Trump’s Escalating Assault on the Rule of Law: The True Ground for Impeachment

03 Monday Sep 2018

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By Frank Bowman

As many others have observed, the longer the Trump era continues, the more we become desensitized to almost-daily assaults on basic norms of republican government and the rule of law.

Today, the person in the White House issued a Tweet that, in any previous era, indeed even a year ago, would have summoned an avalanche of condemnation from every corner of the civic and political world.  He said:

Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff……

In short, Mr. Trump is saying — openly, plainly, overtly, with no tinge of embarrassment or shame — that the United States Department of Justice should not indict crooked politicians if they are of the same party as the president.

The fact that the two congressmen in question are, without serious question, as guilty as it is possible to be — Duncan Hunter stole at least $250,000 in campaign funds and spent it on himself and his wife, and in 2017 Chris Collins was photographed committing insider trading while on the White House lawn — cuts no ice with Trump.  The idea that the job of the Department of Justice is to prosecute the guilty regardless of party is as far beyond Trump’s comprehension as the particulars of Einstein’s theory of relativity.  Every component of the federal government exists only to serve him. The Justice Department exists to punish his enemies and sweep the sins of his sycophants under the rug.  And he no longer bothers even to pretend otherwise.

Let us be absolutely clear on one point — No other president in the history of these United States has ever publicly said anything remotely approximating Trump’s outburst today.  So far as we know, only one other president has privately entertained such views … and when they became public knowledge in the Watergate scandal, he was forced to resign to avoid impeachment.

But as sure as eggs is eggs, the response from Republicans to this historic repudiation of a bedrock principle of American governance will be … silence.

And even among Trump’s opponents, outrage will be muted.  Because one can sustain fury, even when fury is merited, only so long.  And the outrage will be fleeting.  Because, since Trump knows nothing he says or does will evoke even a muted whimper of protest from the organization formerly known as the Grand Old Party that now cringes at his feet, tomorrow will bring a new abomination that will supplant memory of today’s. He is slowly — no, not slowly, but with frightening speed — warping our collective sense of tolerable behavior in public office, indeed of right and wrong itself.

Should Democrats win control of Congress in November, and should they be disposed to consider impeachment, this is where their attention should focus.  Not, for heaven’s sake, on whether he paid off two women of doubtful virtue (and even more doubtful discrimination in their choice of personal companions) to keep them quiet.  Not on whether Trump did or didn’t know in advance about the dodgy Trump Tower meeting with the Russian envoys.  The central impeachable offense here is not personal immorality, or incidental violations of this or that statute, or even an obvious willingness to accept electoral assistance from a longstanding national foe.  All of these are evidence of Trump’s primary impeachable offense, but are not the offense itself. The core of any impeachment effort must rest on Trump’s daily destruction of the norms of behavior that make constitutional government possible.

Since 1640, when Parliament impeached the Earl of Strafford for his efforts to elevate royal prerogative over the common law and substitute the will of the monarch for the judgment of Parliament, it has been an impeachable offense “to subvert the ancient and well established form of government … and instead thereof to introduce an arbitrary and tyrannical way of government.”  That’s what we face in the United States in 2018.  And we need to be bold and honest enough to do something about it.

NOTE: Since I first posted this yesterday, the Republican response (with the single exception of Sen. Ben Sasse R-Neb., who is not running for reelection) has, as predicted, been … silence.

It’s Too Late for a New “Saturday Night Massacre”

13 Friday Apr 2018

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By Frank Bowman

In the hours following Mr. Trump’s infuriated reaction to the FBI’s search of his lawyer’s office, the media crackled with speculation that the president would fire either special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, or Attorney General Jeff Sessions, or perhaps all three together.  It hasn’t happened yet. And while nothing is certain with our increasingly erratic chief executive, if he retains both a shred of rationality and advisors with some knowledge of the federal criminal system and the capacity to make their boss face reality, there will be no firings. And if there are, they won’t stop the hounds baying at Mr. Trump’s heels.

Mr. Trump wants to fire those he perceives to be his tormenters in order to make the torment – the investigations they supervise – stop. But the simple truth is that Justice Department investigations involving Mr. Trump, his campaign, his family, and his businesses have now proceeded so far that, while they could be hindered or delayed, they cannot be stopped.  That Mr. Trump seems to think that a few firings would achieve that end only shows how little he understands about the federal criminal justice system and the professionals who serve it.

Trump’s most well-known problem, of course, is that, despite his press secretary’s confident assertions to the contrary, he cannot fire Mueller directly.  Under Justice Department regulations, a special counsel can be “removed from office only by the personal action of the Attorney General,” or where the Attorney General is recused, by his deputy, Rod Rosenstein. So to get to Mueller, Trump would have to fire Rosenstein and then put someone in his place willing to axe Mueller.

But the Senate would not confirm an obvious hatchetman as permanent replacement to Rosenstein. So Trump would have to begin working his way down the DOJ line of succession, ordering Mueller’s removal, and then firing anyone who refused, until he found someone willing to be this generation’s Robert Bork (who as Solicitor General complied with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox).  It’s possible that he could find someone pliable enough to at least consider firing Mueller.

But Trump’s problem is that firing Mueller cannot, by itself, stop the investigations run by Mueller’s office. Mueller has already filed multiple cases. Some of them, like Paul Manafort’s, remain to be tried.  Mueller’s office also employs or supervises dozens of prosecutors and investigators who are actively investigating other crimes and defendants.  He has collected thousands of documents and hundreds of witness interviews and presented reams of grand jury testimony. To stop all that — and to bury the results so they no longer threaten Mr. Trump – would require Trump’s chosen executioner not merely to fire Mueller, but to order the immediate cessation of all the investigative activity being carried on by Mueller’s office and the immediate destruction or sealing of all the information they had gathered.

That won’t happen.  For two reasons.

First, it is extremely doubtful that Mueller’s prosecutors and agents would obey an order shutting and sealing their investigations, particularly if given for no better reason than that the President (who is a subject of their inquiry) said so.  There is no legal basis for such an order.  More to the point, an order to both close and suppress the results of Mueller’s investigations would itself be a plain case of obstruction of justice under either 18 U.S.C. 1503 or 1512.

Second, no rational Rosenstein replacement, no matter how deeply in thrall to Mr. Trump, would order Mueller’s work both stopped and sealed.  Any person who gave such an order would, at one stroke, commit career suicide and become a criminal target himself.

From Trump’s perspective, the rosiest scenario after Mueller’s firing would be: (a) appointment of a replacement for Mueller somewhat more tractable to the president’s wishes, or (b) a dispersal of Mueller’s staff and a transfer of their cases and investigations to regular U.S. Attorney’s Offices who would carry on the work.  Either might slow things down, but the investigations would still be run by career prosecutors and agents who would not simply walk away.

Moreover, the part of the investigation that Trump now apparently most fears – the result of the search through his lawyer’s office – is already outside the special counsel’s bailiwick and being pursued by the U.S. Attorney’s Office for the Southern District of New York.   Neither the New York prosecutors nor the FBI itself, which has a large measure of independent investigative authority, will stop so long as there are grounds to believe federal crimes may have been committed.

In short, while a DOJ firing spree might provide Mr. Trump a moment of satisfying catharsis, it will not resolve his legal problems.

At this critical juncture in his life, Donald Trump confronts a phenomenon with which he has never before had to reckon – the principled dedication of the men and women of the Department of Justice.  The “deep state,” if you like. Though individually subject to all the flaws of any professional assemblage, their institutional allegiance is to no man and no party, but to the vigorous and impartial enforcement of the law. If Mr. Trump has, as he says, done nothing wrong, he has nothing to fear.  But it’s now too late to prevent the Justice Department from following the evidence wherever it may lead.

 

FBI Deputy Director McCabe’s Resignation

30 Tuesday Jan 2018

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By Frank Bowman

It was reported this morning that FBI Deputy Director Andrew McCabe, long a target of Mr. Trump’s ire, has resigned.

McCabe has been under attack from the White House and its allies because his wife received campaign donations during her unsuccessful 2015 bid for a Virginia legislative seat from a political action committee associated with Virginia governor Terry McAuliffe, who in turn was a prominent supporter of Hillary Clinton. The implication has been that McCabe was biased against Trump and in favor of Secretary Clinton during the FBI investigation of the Clinton e-mail scandal and somehow influenced the outcome.

Of course, as carefully reported here by Politifact, the facts don’t support the allegation.  As Politifact summarizes the matter:

At the time of the contribution, the candidate’s husband was not directly involved in the FBI probe of Clinton’s email server, according to the FBI. The bureau says that by the time he had some oversight role in the Clinton investigation, the election involving his wife had been over for three months. Meanwhile, the decision not to charge Clinton was a recommendation made by the director of the FBI [not by McCabe].

I am of two minds about McCabe’s departure.  On the one hand, in the short term, it may be just as well to have him out of the picture.  Regardless of the facts of the matter, it is not helpful to the Bureau in the present moment to have a Deputy Director with family links, however attenuated, to Secretary Clinton’s political allies. McCabe’s resignation means one less distraction from the substance of the investigations swirling around Mr. Trump.

On the other hand, McCabe’s departure is profoundly disturbing for at least two reasons. The first is that an honorable public servant should not have his career cut short by unsubstantiated slurs from the President of the United States.

The second, and deeper, concern is that the attack on McCabe is yet another Trumpian assault on essential norms that have long governed relations between the White House and the career civil service generally and federal law enforcement agencies in particular. Central to a functioning modern state is confidence that the government’s ordinary employees perform their tasks free of partisan political bias. To help ensure that civil servants will do so, the Hatch Act of 1939 requires that career federal employees surrender some of the rights of political participation enjoyed by everyone else.  Conflict of interest regulations go still further to prevent, so far as possible, even the appearance of favoritism or bias. Equally importantly, the civil service has for many decades cultivated an ethos of political neutrality, offering professional diligence in the service of the law and the agency’s mission, rather than the party of the moment.

This ethos is particularly strong in the Justice Department and federal criminal justice investigative agencies.  Anyone who has served in these bodies through several changes of administration recognizes that new presidents bring policy changes at the margins, but the focus of the career people remains on finding facts and enforcing the law. The internal norm is that personal political affiliations don’t matter and are usually unknown to one’s co-workers. No one worries that career prosecutors or agents will go harder on targets who are of the opposite party or easier on targets who share their political affiliation.

To be fair, these norms of professional even-handedness are sometimes strained in the highest profile cases. But to an impressive degree federal law enforcement agencies have lived up to the expectation of neutral professionalism.  Which is why both congress and the public have traditionally accorded the results of DOJ investigations a degree of respect they would never offer to the work of state or local governments.

It is precisely in order to protect the tradition of independent judgment so essential to its institutional mission that the Justice Department (of which the FBI is a component) has long jealously resisted White House efforts to meddle in investigations or prosecutions.

Trump’s now-successful attack on McCabe is an assault on the federal civil service in general, and the independence of the Justice Department more particularly.  In effect, Mr. Trump’s argument against McCabe is that a career FBI agent cannot be trusted if his wife ran for state elective office on the ticket of the party opposing the president. And that, in turn, is fast translating into the demand from Trump adherents and their media cheerleaders that no Democrat, or indeed any Republican not slavishly attached to Mr. Trump, can participate in investigations that might reflect adversely on the present administration.  And, of course, Mr. Trump has already embraced the view that he is entitled to “loyalty” — and protection — from “his” Attorney General and “his” FBI Director.

I have written before about the continuing Trumpist subversion of the Justice Department and the grave consequences that will flow if it succeeds.  McCabe’s resignation takes us a tiny step closer to the point of no return.

Mueller Under Fire

16 Saturday Dec 2017

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Special Counsel Robert Mueller has been under attack by both President Trump and the Department of Justice. President Trump has called the FBI investigation into his campaign’s connections with Russia a “Democratic hoax,” and has brought into question the Bureau’s efficacy. Meanwhile, the Department of Justice has been playing a subtle political game with the FBI, by releasing the text messages exchanged between investigators on Mueller’s team which criticized Trump. All of this comes in the face of General Flynn’s cooperation with the Mueller campaign. Though defensive measures are not clearly indicative of guilt, they suggest a strong motive to hinder the investigation. More information may surface after Mueller meets with the President’s legal team next week. 

robert-mueller-gty-jpo-171101_31x13_992.jpgTom Williams/Getty Images

A Pillar of the Temple Trembles: The Trumpist Assault on the Department of Justice

17 Friday Nov 2017

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In the fall of 1979, I took my first legal job. By astounding good fortune, I was hired fresh out of law school as a Trial Attorney in the Criminal Division of the U.S. Department of Justice in Washington, D.C. From the moment I first walked into the monumental neoclassical Main Justice Building on Pennsylvania Avenue, I knew that I’d come to a unique place.  The marble, the statuary, the New Deal-era murals, the glorious main library’s vaulted ceilings, gleaming oak, and book-laden shelves, and the pervasive air of deliberative rectitude and high seriousness enthralled me.

To be honest, I wasn’t a particularly good prosecutor to start with.  I was too young, too immature, too undisciplined.  But if I didn’t give the Justice Department all it deserved at the beginning of my career, it placed an indelible stamp on me.  During two tours with the Department, in which I served under Presidents Carter, Reagan, Bush Sr., and Clinton, I shed most of my initial gauzily romantic infatuation.  But in its place grew a deep appreciation of the central role the Justice Department plays in maintaining the rule of law in a democratic state and a hardnosed set of convictions about the values that must inform the Department’s work if republican government is to survive in America.

Mr. Trump and the congressional Republican Party are on the brink of grievously wounding the Department of Justice. If they succeed, they will have weakened, perhaps permanently, a pillar of American constitutionalism and one of its most important bulwarks against creeping autocracy.  Let me explain:

The U.S. Department of Justice is immensely powerful.  Neither its reach nor its resources are infinite.  But as to any individual, group, or corporation it elects to pursue, it can bring to bear nearly unlimited money, dedicated staff, and first-rank legal talent. Those lawyers are empowered to direct the immense resources of multiple federal law enforcement agencies — FBI, DEA, ATF, Secret Service, Customs, ICE, postal inspectors, and more. In appropriate cases, they can deploy investigators and experts from federal regulatory agencies like the SEC, the EPA, OSHA, and the FDA, and even in certain circumstances, military and intelligence assets.  Only Justice Department prosecutors can command the unmatched coercive powers of a federal grand jury.  Only federal prosecutors have the luxury of selecting criminal charges from the sprawling federal code, a body of law so all-encompassing that it is only slightly facetious to suggest that it criminalizes some aspect of virtually every human activity.  And the Department’s long arm can reach into every state and across oceans.

Some observers are understandably leery of DOJ’s immense power. But in the modern world, this power is essential. Without it, there would be no authority capable of combating organized crime, international criminal cartels, domestic terrorism, entrenched federal, state, and local political corruption, or complex financial fraud.  Without the Department of Justice, there would be no effective public counterweight to the staggering wealth and sometimes pernicious influence of modern multinational corporations.  The private centers of power Teddy Roosevelt labeled “malefactors of great wealth” have in our day metastasized to a degree T.R. could not have imagined.  Without DOJ, they would be unchecked.

With the power to combat great evil necessarily comes the power to inflict great harm. Conviction of a federal crime can mean imprisonment, impoverishment, even death.  Its collateral consequences can include public stigma, loss of livelihood, and destruction of family.  Even the wealthiest corporations – Enron and Arthur Andersen, to name but two – can be destroyed.  Just being investigated by DOJ can inflict a steep price in time, money, and sullied reputation.

Power this crushing is only tolerable in a free society if it is exercised — and generally believed to be exercised — impartially, humanely, and in the interests of justice in the broadest and best sense. My youthful infatuation with the Department, and my lifelong affection for it, rests on the conviction that, with occasional exceptions inevitable in any human institution, the men and women of the Department, both career public servants and political appointees, are conscious of their grave responsibility and strive to wield their power impartially and with honor.  Critically, the Department’s people have fiercely resisted pressure to ignore the crimes of officeholders and their friends, or to transform the sword of criminal justice into a weapon against the political opponents of the sitting president.  Because of this tradition long upheld, the Department’s prosecutors enjoy a reputation for professional probity every bit as central to their success as the raw institutional power at their disposal.

It is by now obvious that Mr. Trump cares nothing about the institutional integrity of the Justice Department, and has actively tried to corrupt it.  He tried to convince FBI Director James Comey not to investigate presidential adviser Michael Flynn, and then fired Comey when the Director wouldn’t take the hint. He fulminates nearly daily about Robert Mueller’s investigation of Russian election interference and flirts publicly with obstructive maneuvers like firing Mueller, firing Attorney General Sessions, or pardoning everyone involved in the case. And recently he has tried to pressure the Department into investigating a series of long-resolved or self-evidently bogus allegations against his former opponent Hillary Clinton and other Democrats.

Trump’s effort to strong-arm the Department into abandoning its most basic values by initiating baseless, politically motivated investigations is distressing enough.  I have argued previously that it constitutes an impeachable offense. But one could (almost) dismiss Trump’s tweets and barks on this subject as yet another instance of his singular misunderstanding of American government.  And one could be comforted by the likelihood that his outbursts would be rendered ineffectual by the resistance they would surely encounter from others in government with a better sense of constitutional norms.

The Republicans on the House Judiciary Committee have now stripped away that comfort.  In late July, seventeen Republican committee members sent a letter to Jeff Sessions demanding that the Justice Department investigate a grab-bag of spurious charges against Secretary Clinton and others.  During Attorney General Sessions’ appearance before the committee earlier this week, Republican members hammered ceaselessly on their demand for a new special prosecutor to investigate Secretary Clinton, with special emphasis on long-since debunked claims about the so-called “Uranium One” affair.  Sessions has yielded at least so far as to assign “senior federal prosecutors” to assess the Republicans’ requests.

I am not sure people understand how shatteringly consequential this is.  It is bad enough to have Mr. Trump – whom, sadly, no one now expects to understand democratic norms — seek to weaponize the Department of Justice.  But what we have witnessed in the months leading up to the Sessions hearing is the utter moral degradation of House Republicans. Seventeen Republican congressmen, virtually all lawyers, many of them former prosecutors, specially selected by their party to sit on a Committee dedicated to ensuring the integrity of the American justice system, are demanding that the Justice Department investigate a list of allegations almost every one of which is obviously either legally or factually baseless. And the Republicans know it.  No sentient lawyer could think otherwise.

The game here is obvious.  The Mueller investigation into the real effort, attested to by every U.S. intelligence agency, of the Russians to rig an American presidential election is hurting Mr. Trump and the Republicans politically. It hurts so much precisely because it is being conducted by the Department of Justice under the direction of a Republican prosecutor of impeccable credentials.  Republican members of the Judiciary Committee desperately want to create a diversion, a means of planting in the public mind the impression that, whatever Trump did, Democrats did something as bad or worse.  It doesn’t matter if any real crime is uncovered, only that an investigation, with all the inevitable publicity, be commenced.  Of course, the House could investigate all these matters itself.   But the Republicans know that such investigations are easily dismissed as partisan.  Thus, only an investigation that bears the trusted stamp of the Justice Department will serve their political ends.

In short, the congressional Republican Party is consciously attempting to use the Justice Department’s hard-won, carefully guarded reputation for fairness and integrity to create a diversion from the real issues being investigated by Robert Mueller and the political damage that investigation is causing Mr. Trump and his allies.

Whether Jeff Sessions will crumple under the mutually reinforcing pressures from Mr. Trump, congressional Republicans, and his own self-interest remains to be seen.  If he does, the long-term damage to both American electoral democracy and the rule of law could be profound.

Several commentators, including Republican stalwarts like former Attorney General Michael Mukasey, have observed that launching criminal investigations of defeated presidential candidates is contrary to American norms and akin to the practices of “banana republics.”  This is profoundly true, but I suspect many do not fully appreciate the reference.

An indispensable feature of successful democracies is the peaceful transfer of power from one elected administration to its popularly chosen successor. Such transfers reliably occur only if the loser of an election knows that the sole consequence of losing is a return to private life. But if the predictable consequence of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants are tempted to ever more extreme measures to prevent it.  Vicious propaganda, overt corruption, strong-arm tactics, ethnic incitement, all can be rationalized. All are soon normalized.  And democracy dies.  This is the all-too-common story in the developing world.  But regression is perfectly possible among mature democracies like our own.

Even if nothing quite so dramatic occurs and the Republican push for a Potemkin special prosecutor produces only a long, distracting, but ultimately unsuccessful investigation of Mr. Trump’s opponents, the damage to the Justice Department and thus to the rule of law would be lasting.  The best reading of the Department’s enigmatic Latin motto, Qui Pro Domina Justitia Sequitur, is that the Department’s lawyers are those “who prosecute on behalf of justice.” We trust the Justice Department with its immense powers because we trust it to wield those powers in pursuit of justice – to be honest, to be fair, to be apolitical.  And the Justice Department owes its effectiveness before courts and juries to our confidence in its probity.  If the public ever surrenders that confidence in favor of enduring suspicion that the Department is merely a tool of the party occupying the White House, then federal law enforcement will be irremediably crippled.  Every corrupt politician, slimy fraudster, and predatory corporation will scream “Politics!” at the first hint of a federal indictment.  Some will be believed.  And all of us will be less secure.

Not too long after the last election, I was on Capitol Hill talking with an aide to a Republican senator.  The probable appointment of Jeff Sessions as attorney general came up. When I wrinkled my nose a bit, my companion said, “At least with Jeff Sessions, you get a guy who knows the Justice Department and is committed to the rule of law.”

We will soon see if he was right.  Or whether Mr. Sessions will set in motion a train of events that could fracture an institution central to American democracy.

Frank Bowman