The MAGA Republicans in Congress, who refer to themselves as the Freedom Caucus, demonstrate that, for some of its members at least, the name is an oxymoron—at least when its members are asked to support the freedom and self-determination of Ukraine. We ought to be determined to advance the freedom and collective self-determination of an ally in need, of course, since our own freedom was once advanced by a foreign power. And of course we have always been grateful for the role France played to support our right of self-determination. President Wilson described World War I as a means of supporting the self-determination of nations. If we start with viewing the freedom referred to by our Freedom Caucus as including an ally nation’s collective right to self-determination, we should hesitate before abandoning Ukraine as an appropriate place to advance the cause of self-determination.
Recently the former President, Donald Trump, has contended that federal indictments of him amount to “weaponizing our justice system to punish a political opponent.” He contends that the several prosecutions are designed to enhance President Biden while diminishing the former President’s moral and political standing. These specific claims deserve careful evaluation; but the first step is to return to where similar allegations have previously been made to determine what we can learn from them.
Objective Independence and Pursuit of Impartial Justice as the System’s Long-Term Goals. The Justice Department has stated that its job is to manifest “independence and impartiality,” which means it is to follow “the facts and the law wherever they may lead, without prejudice or improper influence.” (U.S. Department of Justice, “Our Mission,” 1789 to Today (2022.)) The purpose of the Justice Department developing independence from the administration is to further a law enforcement philosophy to “treat everyone with fairness, dignity, and compassion.” (Id.) The darker alternative is a justice system that follows the preferences of the current administration and attempts to advance regime policy and goals. Compare the American system of justice with the justice system that functioned under Soviet communism. The American system seeks to apply and follow enacted law, but the Soviet system was devoted to advancing the preferences of the current, unelected regime.
If we decided cases based on our perception of administration preferences, the legal system would leave behind the ideals of following the law and treating affected individuals fairly and compassionately. In a system like the Soviet’s, the purpose of deciding cases impartially disappears, and cases will often be decided based on the current regime’s “prejudice,” and sometimes based on what our Justice Department referred to as “improper influence.” Under such a system, impartial decision-making eventually ceases to even be the ideal, and conceptions of regime preferences override any goal of fairly interpreting the law.
Weaponizing the Justice Department Under President Trump. The Attorney General and the Justice Department have sometimes been criticized for being so affiliated with the President that the law came to be used to advance administration preferences rather than to enforce the law., A topic of debate in the 2020 Presidential campaign was the contention that Attorney General Barr had violated long-term norms of federal law enforcement by declining to conduct the Justice Department independent of White House preferences. A number of Justice Department lawyers, past and present, contended that Attorney General Barr had acted as an advocate for the President rather than seeking independently to pursue law and justice.
Trump’s response to the January 6 prosecutions is also illustrative. The resulting prosecutions were based on the independent judgment of the Justice Department. No one has proffered an iota of evidence that these prosecutions presented a biased decision to implement the will of President Biden. Yet Trump calls convicted insurrectionists—many of whom pleaded guilty—hostages and threatens to pardon the entire group. Presumably this threat includes even those who engaged in violence directed at the Capital Police. Look at the treatment in a special issue of Time Magazine. He has promised, moreover, to appoint a special prosecutor to go after Biden, for all his crimes and corruption. He makes these claims and suggests that he would fire U.S. Attorneys who did not prosecute consistent with his will.
In his first term of office, President Trump granted pardons “to his supporters or political allies.” See List of people granted executive clemency by Donald Trump, Wikipedia.org. One commentator observed that Trump relied “on his personal connections rather than the Justice Department’s established review process for finding convicts deserving of clemency.” Beth Reinhardt (Feb, 19, 2020) (quoted in Wikipedia). A consequence was that Michael Flynn, Paul Manafort, Steve Bannon, and Roger Stone—all longtime friends and advisers to the President—were all pardoned.
The President’s use of a strikingly partial approach to justice was provided by the Attorney General’s use and treatment of the 448 page Mueller report, a report based on an investigation by the former FBI Director (Robert Mueller) to determine the extent to which the Trump presidential campaign had been involved in the Russian efforts to interfere with the 2016 presidential election. Trump had threatened to fire Mueller and claimed that the Mueller team was filled with anti-Trump Democrats—and hence the Mueller investigation amounted to a Democratic “witch hunt.” But the three key players in bringing about the Mueller investigation (FBI Director James Comey, Deputy Attorney General Rod Rosenstein, and Robert Mueller himself) were in fact all Republicans. More importantly, the Mueller report was the product of the system developed to enable the government to fairly and objectively investigate itself to determine whether a federal prosecution was necessary and justified. No one has brought to the nation’s attention any evidence or careful analysis to show that the Russian investigation was illegitimately started or that the 448 pages of the Mueller report showed bias against President Trump.
Before releasing the lengthy report itself, Barr summed it up for public consumption, in a four-page letter. In this relatively brief statement, Barr claimed that the report had completely exonerated the President. Mueller had found that the Trump campaign had not “colluded” with the Russians to the end of assuring a Trump election; and it is certainly true that the report did not advocate prosecuting President Trump. It did so, in fact, by concluding that the investigation did not establish that Russia had created a conspiracy with the Trump campaign to prevent a Clinton administration. Trump had consistently contended that the relevant issue was whether there was collusion between Russia and the Trump campaign. The Mueller report did not find a Russian/Trump conspiracy, but it is noteworthy that this finding belied President Trump’s assertion that the team was simply “going after” Trump.
Barr’s letter, however, did not fairly describe the report’s content or conclusions. Commentators have generally agreed with Mueller’s own assessment, that Barr’s summary omitted the report’s main conclusions in favor of a Trump exoneration spin. The report found that there were many contacts between the Trump campaign and the Russians, and that the campaign expected to benefit immensely from materials stolen and released by the Russians. Trump has confidently stated the view that the Russians did not significantly intrude on the election itself; the report not only concluded that the Russians interfered in the 2016 election, but did so to enhance Trump’s prospects for defeating Clinton. The Mueller report also concluded that the Trump campaign had sought to prevent the Mueller investigation from succeeding—and thus to cover up what had happened and who had helped. The evidence did not prove a conspiracy, but it was equally clear that members of the Trump campaign and administration acted to obstruct the investigation of what had happened. (See generally Heather Cox Richardson, Democracy Awakening: Notes on the State of America 104-109 (2023)).
Legal&Political 