The Department of Justice is in the gravest crisis of its storied 150-plus-year history, and whether it will emerge with anything like its previous institutional strength and integrity is far from clear. Twice before, the department has faced a crisis from within. Both times, presidents sought to corrupt its mission for self-serving ends. Both times, political appointees of the department—as it happened, Republicans—stepped up, putting the department’s institutional interests ahead of the personal welfare of the president.
The first episode was the famed “Saturday Night Massacre” of 1974, during the investigation of Watergate, when President Richard Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox. Both Richardson and his deputy, William Ruckelshaus, refused the president’s order and resigned. (It was Robert Bork, the then solicitor general, who ultimately carried out the order.) The refusals led more or less directly to Nixon’s resignation. It was a defining moment for the department, still invoked today as one of its finest hours.
The second episode occurred in 2021, at the end of Donald Trump’s first administration. Trump sought to strong-arm the department into writing a false letter to Georgia election officials to further the plot to steal the election. In a dramatic Oval Office showdown, the entire department leadership, led by acting Attorney General Jeff Rosen, told Trump that they would all resign if he installed Jeff Clark as a puppet attorney general and went ahead with his plans. Trump relented, and again the department reaffirmed its institutional strength.
Both of those crises were events of high drama when the continued institutional integrity of the department was on the line.
The current crisis has not yet reached a white-hot moment of showdown, and that may never happen. But make no mistake: It is considerably more threatening, and the outcome considerably more in doubt.
Most importantly, there is no DOJ appointee in place to play the role of Richardson or Rosen by standing up for the Constitution above the president. Intent on not repeating his previous failure to roll the department, Trump already has stacked the deck by installing lackeys to issue the orders. Note that the current acting attorney general, James McHenry, who temporarily led a Justice Department unit dealing with immigration during Trump’s first term, carried out Trump’s order to fire 12 career prosecutors who had worked for Jack Smith.
A more breathtaking example here is Ed Martin, the just-appointed acting U.S. attorney for the District of Columbia, who has ordered up an ill-defined “investigation” of some of the conduct of the January 6 prosecutions, demanding a “comprehensive and assertive” interim report by Friday—a laughably short turnaround that precludes any sort of thorough analysis. And he ordered the top officials in the office to oversee the investigation of their colleagues, adding a graceless insult to the injury of the project itself.
Martin is a charter stop-the-steal election denier, who represented Proud Boys and other rioters and served on the board of the “Patriot Freedom Project,” a group dedicated to raising money to support the marauders. He attended the January 6, 2021, rally and tweeted that there was “nothing out of hand” about what happened at the Capitol that day. He has no business being involved in any department investigation involving the offenders.
Trump is no great strategic thinker. But he has a deft instinct for sowing chaos, including by bundling together a plethora of outrageous acts. With so many bombs exploding at once, it’s very hard for institutionalists to effectively make the case or even explain to the American people why the conduct threatens constitutional rule. Moreover, there is the additional challenge that much of the country has been conditioned to see Trump’s reprisals as tit for tat for the department’s prosecutions of Trump.
The last 10 days have reinforced a sort of iron law of Trump knavery: There’s always a lie at the core. That’s the logical place to start in explaining Trump’s constitutional offenses.
Here, the core lie is the claim that the prosecutions of Trump and his gang of constitutional hoodlums were political and not meritorious. It’s clear that embracing the falsehood is a required article of faith for anyone in the administration, including attorney general nominee Pam Bondi, who advanced it repeatedly in her testimony, along with general diatribes against the department for “weaponizing” prosecutions.
But the claim is a vicious slander, and one that goes to the heart of the department’s identity. Its proponents’ sole basis for making it is that Trump was the defendant. The fact—the plain fact that we must insist on again and again—is that the department does not tolerate, much less countenance, politicized prosecutions, which directly contradict the department’s operating credo of doing justice without fear or favor. Careers DOJ lawyers are with very rare exceptions scrupulous and by the book. The image of a systematic corruption of the entire department, from line prosecutors to the attorney general, always has been a dark Trump delusion.
There’s a way to prove that in Trump’s cases. It’s just that, as with rebuttals of so many of Trump’s irresponsible diatribes, it requires meticulous explanation and a fair hearing, both of which have become very scarce commodities under Trump’s malign influence, along with that of the right-wing media ecosystem that parrots every Trump lie.
Prosecutors habitually invoke “the facts and the law” as the sole guides to their conduct. It’s such a widespread mantra that it tends to go in one ear and out the other. But in fact, it’s the North Star of prosecution without fear or favor.
The simple indispensable point is that the charges against Donald Trump and his co-conspirators were grounded securely in the facts and the legal violations that they established. Moreover, Trump and company have cited no facts or law in support of their claim. The sole point of “proof” is that Trump was the defendant, and the implicit argument is that a Democratic administration that prosecutes a prominent Republican must be in the tank.
It was to rebut those charges while he could that Jack Smith ended the volume one report to Merrick Garland with the simple avowal that the dismissal of the charges in no way turns on “the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution—all of which the Office stands fully behind.”
The crisis will be unfolding for the next several months, as Trump, Martin, and company (presumably to include Bondi) pursue their relentless campaigns of reprisal. I will have much more to write, but it’s critical to keep foremost in mind that this is a Manichaean battle between forces of good and forces of evil. One side is correct and righteous; the other is lying and wicked. If history, or political culture, or congressional courage, or all of the above can’t suffice to deliver an eventual repudiation of Trump’s scurrilous claims, the department will have been permanently crippled.
