Desecrating DOJ

Independent legal analysis matters. In a moment when the courts and the Department of Justice are shaping the future of our democracy, Civil Discourse gives you clear, accessible insight you can trust. If this work adds value to your understanding, I hope you’ll consider supporting it by becoming a paid subscriber.

The Justice Department is investigating whether anyone in the Obama administration violated federal law during the investigation into Russia’s involvement in the 2016 presidential election. The Washington Post reports that the attorney general has ordered a grand jury to hear evidence. If that precise phrasing is accurate—that Pam Bondi has a grand jury hearing evidence—that suggests that the case is quite far along or that a serious investigation is underway. But the notion of revisiting 10-year-old events that were thoroughly investigated by both a special prosecutor appointed by Donald Trump, John Durham, and a Senate Subcommittee led by Marco Rubio without prosecution of these officials smacks of political interference.

The threshold for opening an investigation is a low bar; all it takes is a reasonable belief that a federal crime has been committed. Typically, a case begins with investigators talking to witnesses and collecting information to assess the facts and see if their suspicions pan out. Grand jury subpoenas can be issued to collect evidence, for instance, asking a bank to submit financial records in a fraud case. Frequently, a grand jury doesn’t actually hear the evidence until prosecutors are close or ready to indict. In other cases, an investigative grand jury is used to obtain evidence, sometimes for a lengthy period of time.

So, it’s not exactly clear what’s going on here or even whom the targets might be. This could be just a smoke screen, thrown up at this precise moment to distract from the Jeffrey Epstein debacle. Or it could be an investigation in progress or even a matter ready to indict, although that seems less likely. But it’s extraordinary that we know about it at all. Even though witnesses aren’t bound by the same grand jury secrecy rules that prosecutors and others are, it’s extremely unusual to have this sort of public revelation of a grand jury process. Subjects of an investigation aren’t usually eager to have that fact known publicly. Others, including prosecutors, are subject to prosecution for criminal contempt if they reveal grand jury proceedings. The source of the leaks that led to public reporting of this investigation is unclear.

Presidents don’t tell DOJ what cases to indict or whom to investigate. Donald Trump claimed in a phone interview on CNBC today that he didn’t instruct his attorney general, Pam Bondi, to open a case on former Obama officials, but at the same time, he’s been sending her all the signals she needs to get there. He did it again in the interview, “I will tell you this: They deserve it,” Trump said. “I was happy to hear it.”

Survival among Trump’s appointees is about one thing and one thing only: keeping the boss happy. Bondi understands that. But keeping the boss happy is not an attorney general’s job. The Justice Department isn’t supposed to be a political tool in the president’s hip pocket. We are in a red zone for danger.

The principle of a fair and just society hinges on the impartial application of the law, free from political influence or pressure. Our country learned that lesson during Watergate, and after Nixon resigned, norms were established to keep presidents out of prosecutions. Maintaining public trust in the justice system is crucial in a healthy democracy. If the president can dictate who gets indicted and who doesn’t, all pretense of fairness would be replaced with a world where prosecutions could be politically motivated. Insulating DOJ from direct presidential control is essential to preventing weaponization of the justice system by an administration against its political opponents or for personal gain.

This is a baseless investigation.

What are the allegations? It’s not that Trump colluded with Russia. This is the innocuous proposition, widely understood, that Russia tried to influence the outcome of the 2016 election and that they favored Trump. The idea that there was a conspiracy to manufacture that conclusion is ridiculous. We all saw it happen in real time. Remember this? “But her emails.” In October of 2016, the Department of Homeland Security and the Director of National Intelligence released a joint statement on election security, noting:

“The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from US persons and institutions, including from US political organizations. The recent disclosures of alleged hacked e-mails on sites like DCLeaks.com and WikiLeaks and by the Guccifer 2.0 online persona are consistent with the methods and motivations of Russian-directed efforts. These thefts and disclosures are intended to interfere with the US election process. Such activity is not new to Moscow—the Russians have used similar tactics and techniques across Europe and Eurasia, for example, to influence public opinion there. We believe, based on the scope and sensitivity of these efforts, that only Russia's senior-most officials could have authorized these activities.”

Of course there was investigation into Russia and the campaign. Information about it was released publicly. In fact, it would have been an abdication of responsibility to ignore Russia’s quadrennial efforts to interfere in our presidential elections. Donald Trump may not like that fact, or the implication that they wanted him to win in 2016, but that doesn’t mean that anyone did anything criminal.

There’s also a technical legal issue to a prosecution here, the statute of limitations, which gives federal prosecutors five years from the time a crime occurs to indict a case. That should have prevented DOJ from opening an investigation here, unless they believe they can prove that there was an ongoing conspiracy to conceal old crimes. In a situation like that, the statute doesn’t run out until five years from the last clear act designed to conceal a conspiracy. So expect some sort of attenuated theory at work here. If former Obama officials have been involved in a cover-up since 2016, they’ve done a lousy job, permitting all of the facts to become public. In fact, if they had a conspiracy in the first place, they could have done an enormous amount of damage to Donald Trump in advance of the election. That they didn’t would seem to confirm that Bondi should not be in front of a grand jury with this matter.

Pam Bondi should be ashamed. Prosecutors open cases based on the facts and the law, not the attorney general’s dictates. It’s particularly suspect here, with Trump’s frequently articulated revenge agenda and the fact that Bondi, along with others, said under oath at her confirmation hearing they she didn’t have one. That tells you everything you need to know. This is no longer a DOJ that can be relied upon to act in good faith, holding itself apart from political influence to do the right thing.

We have perhaps hit rock bottom, although one hesitates to say that in an era where people in Trump’s orbit can always go lower. But that is not to say that they will succeed. In fact, there are multiple guardrails in place and more that can be restored, all designed to prevent injustice. For starters, some are built into the legal process:

• For one thing, DOJ doesn’t decide whether to indict a case. That will be up to a grand jury, which must believe there is probable cause to indict. This is already proving to be a problem for the administration in Los Angeles, where a recent headline read, “Trump's top federal prosecutor in L.A. struggles to secure indictments in protest cases.” Grand juries can, and in L.A. have, declined to indict cases that they believe are not supported by the law and the facts.

• If cases are indicted, a unanimous jury must be persuaded the defendants are guilty beyond a reasonable doubt before they can convict. That’s obviously a much higher bar than the standard for a grand jury to indict.

• A trial judge will call the balls and strikes if a case is indicted, and there is an appeal process for any defendants who are convicted.

Beyond that, there is more. Career prosecutors at the Justice Department have declined to engage in misconduct and resigned, publicly and loudly. That happened in the Southern District of New York when prosecutors believed their case against New York Mayor Eric Adams was being abandoned because of political influence from the White House. That kind of brave action by public servants generates public awareness and focus on issues. This is an administration that backs down when there’s enough heat. Our job is to stay focused and hold the line.

Finally, there’s a more long-term goal, restoring House and Senate majorities that will engage in real oversight of a Justice Department that has run amok. That too is up to us, and it’s one among a number of reasons to take the coming elections very seriously.

It is a serious moment, but Trump’s takeover of the Justice Department is not inevitable. Understanding what an investigation should look like and precisely how dangerous this one is puts us on the path to effective resistance, which is what it’s going to take.

We’re in this together,

Joyce