Opinion | Trump Strikes at Justice
Robert Mueller, the special counsel, always knew he was running the Russia investigation on borrowed time. That time may have just run out on Wednesday afternoon, when President Trump ousted his attorney general, Jeff Sessions, less than 24 hours after Republicans lost their eight-year lock on the House of Representatives.
So who’s going to protect Mr. Mueller now?
Until Wednesday, the job was being performed ably by Rod Rosenstein, the deputy attorney general who assumed oversight of the Russia investigation when Mr. Sessions recused himself in March 2017.
Under Mr. Rosenstein’s leadership, the investigation Mr. Mueller took over has resulted in the felony conviction of the president’s former campaign chairman, guilty pleas from multiple other top Trump aides and associates and the indictments of dozens of Russian government operatives for interfering in the 2016 election. For more than a year, Mr. Rosenstein walked a political tightrope, guarding Mr. Mueller’s independence on the one hand while trying to appease Mr. Trump’s increasingly meddlesome demands on the other.
That task now falls to Mr. Sessions’s chief of staff, Matthew Whitaker, who on Wednesday became acting attorney general and, far more alarmingly, the man Mr. Mueller now reports to.
The good news is that no one, including Mr. Whitaker, can stop the multiple prosecutions or litigation already in progress — including the cooperation of Paul Manafort; the sentencing of Michael Flynn; or the continuing investigation of Michael Cohen, Mr. Trump's former lawyer, and the Trump Organization by federal prosecutors in New York. The courts will have the final say on what happens in each of those cases.
Democrats will also soon be running the House, returning it to its place as a coequal branch of government and holding Mr. Trump to account for the first time since he took office. “We are immediately issuing multiple letters to key officials demanding that they preserve all relevant documents related to this action to make sure that the investigation and any evidence remains safe from improper interference or destruction,” Representative Jerrold Nadler, the New York Democrat who is expected to soon head the House Judiciary Committee, said in a statement on Wednesday.
The bad news is, well, pretty much everything else. Mr. Whitaker — who has been called the “eyes and ears” of the White House inside the Justice Department by John Kelly, Mr. Trump’s chief of staff — has expressed a Trumpian degree of hostility to the investigation he is now charged with overseeing. He has called it a “witch hunt” and, in its earliest months, wrote an opinion piece arguing that Mr. Mueller was coming “dangerously close” to crossing a “red line” by investigating the president’s finances. He has suggested there was nothing wrong in Mr. Trump’s 2017 firing of James Comey, the F.B.I. director, and he has supported the prosecution of Hillary Clinton. In an interview last year he described “a scenario where Jeff Sessions is replaced with a recess appointment, and that attorney general doesn’t fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt.” In 2014, he headed the political campaign for Iowa state treasurer of Sam Clovis, who later became a Trump campaign aide and, more recently, a witness in the Russia investigation.
Conflicts of interest like this are what led Mr. Sessions to recuse himself from the Russia investigation. That was the ethical thing to do, even if it sent Mr. Trump into a spiral of rage.
Mr. Sessions, a veteran of the Senate, is an institutionalist at heart. “The Department of Justice,” he once said, “will not be improperly influenced by political considerations.” That sentiment was never going to survive long under Mr. Trump, for whom improper influence has been a central plank of governing philosophy. Ethics, not so much.
The irony is that Mr. Sessions was among the president’s most effective and loyal foot soldiers. Soon after becoming attorney general, he turned Mr. Trump’s cartoonish law-and-order campaign talk into reality by directing federal prosecutors to bring the harshest charges possible in all cases. He helped obliterate the legacy of President Barack Obama, Mr. Trump’s predecessor and nemesis, by pushing to scale back or end policies that Mr. Obama had championed, including legal protections for the 700,000 young immigrants who came to the United States as children.
But personal loyalty is what Mr. Trump really cares about, and on that count Mr. Sessions failed spectacularly. If Mr. Whitaker has any concern for the independence of the department he is taking over — not to mention the rule of law in America — he will follow Mr. Sessions’s lead and hand the reins of the investigation to someone less evidently invested in destroying it.
It’s not even clear Mr. Whitaker may legally hold the post of acting attorney general, since he has never been confirmed by the Senate. But if so, he could do a lot of damage, much of it behind closed doors. For example, he could tip off the White House to what the special counsel's office is up to, or he could block Mr. Mueller from taking significant investigatory steps, like bringing an indictment, without having to notify Congress or the public until the investigation is complete. And any report Mr. Mueller ultimately submits goes directly to the attorney general — who may decide whether or not to pass it along to Congress.
Mr. Trump has made clear that he thinks the attorney general should function as a president’s personal lawyer, protecting him from justice and persecuting his enemies. In the days before Mr. Sessions recused himself last year, Mr. Trump tried desperately to stop him, at one point complaining, “Where’s my Roy Cohn?” He was referring to the infamous mob lawyer and fixer who had mentored him as a young man before dying in 1986.
The president may believe that in Mr. Whitaker he’s found his Roy Cohn. He may also believe that the Republican majority in the Senate — increased on Tuesday with likely Trump loyalists — is prepared to embrace such a corrupted standard for American justice. So it’s a good moment to recall another figure from that era — Archibald Cox, the Watergate special prosecutor, who said in the aftermath of the Saturday Night Massacre in 1973, “Whether we shall continue to be a government of laws, and not of men, is now for Congress and ultimately the American people.”
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