The radical strategy behind Trump’s pledge to go after Biden

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if re-elected to go after President Biden and his family, he indicated that a second Trump term would break the post-Watergate norm of would throw justice completely overboard. Independence of the department.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Trump said at his golf club in Bedminster, NJ, on Tuesday night after his arraignment earlier that day in Miami. “I will completely destroy the Deep State.”

Mr Trump’s message was that the Justice Department was only indicting him because he is Mr Biden’s political opponent, so he would undo that alleged politicization. In reality, two Trump-appointed prosecutors under Attorney General Merrick Garland are already investigating Biden’s handling of classified documents and the financial dealings of his son, Hunter.

But by suggesting that the current prosecutors investigating the Bidens were not “real,” Trump appeared to be promising his supporters that he would designate an ally who would press charges against his political enemies regardless of the facts.

The naked politics that Mr. Trump’s threat provoked underlined something important. During his first term, Mr. Trump gradually increased pressure on the Justice Department, eroding the White House’s traditional independence. He now unashamedly says he will accelerate that effort when he returns to power.

Mr Trump’s pledge fits into a larger legal movement to undermine the FBI, review a claim by Justice Department conservatives “armed” against them, and waive the norm — which many Republicans seen as a facade – that the department should operate independently of the president.

Two of the key figures in this effort work at the same Washington-based organization, the center for renewing America: Jeffrey B. Clark and Russell T. Vought. During the Trump presidency, Mr. Vought served as director of the Office of Management and Budget. Mr. Clark, who oversaw the Justice Department’s civil and environmental divisions, was the only senior official in the department who tried to help Mr Trump overturn the 2020 election.

Mr. Trump wanted to make Mr. Clark attorney general during his final days in office, but dropped out after senior Justice Department leadership threatened to resign en masse. Mr. Clark is now a figure in one of the Justice Department’s investigations into Mr. Trump’s attempts to stay in power.

Mr. Clark and Mr. Vought are promoting a legal rationale that will fundamentally change the way presidents interact with the Justice Department. They argue that US presidents should not keep federal law enforcement at bay, but instead treat the Justice Department no differently than other cabinet agencies. They condemn Mr. Biden and the Democrats for what they believe is the politicization of the justice system, but at the same time push for an intellectual framework that a future Republican president could use to justify conducting individual law enforcement investigations.

Mr. Clark, who is a favorite of Mr. Trump and likely to be considered for a higher position in the Justice Department if Mr. Trump is re-elected in 2024, wrote a constitutional analysistitled “The U.S. Justice Department Is Not Independent,” which will most likely serve as a blueprint for a second Trump administration.

Like other conservatives, Mr. Clark adheres to the so-called unitary executive theory, which holds that the president of the United States has the power to directly control the entire federal bureaucracy and that Congress cannot break that control by allowing some officials to make independent decision-making to give. authority.

There are debates among Conservatives about how far to push that doctrine – and whether some agencies should be able to operate independently – but Mr. Clark is taking a maximalist view. Mr. Trump does too, although he has never been caught reading the Federalist Papers.

In statements to The New York Times, both Mr. Clark and Mr. Vought supported their fight against the Justice Department, with Mr. Clark framing it as a fight for the survival of America itself.

“Biden and DOJ are crying out for Trump’s blood so they can terrify America,” Mr. Clark wrote in his statement. “The Constitution and our Article IV ‘Republican Form of Government’ cannot survive this way.”

Mr. Vought wrote in his statement that the Justice Department was “zero point for the government’s weaponization against the American people.” He added, “Conservatives are waking up to federal law enforcement being weaponized against them and as a result, they are embracing paradigm-shifting policies to reverse that trend.”

Mr. Trump often exploited gaps between what the rules technically allow and the norms of self-restraint that have passed presidents of both parties. In 2021, House Democrats passed the Protecting Our Democracy Act, a legislative package designed to codify into law numerous previous standards, including requiring the Justice Department to provide Congress with logs of its dealings with White House officials. But Republicans portrayed the bill as an attack on Mr. Trump, and it died in the Senate.

The modern era for the Justice Department dates back to the Watergate scandal and the period of government reform that followed President Richard M. Nixon’s abuse. The norm took root that the president can set broad policies for the Justice Department — directing it to increase resources and emphasis on certain types of crimes or take certain positions before the Supreme Court — but not interfere with specific decisions in criminal cases without extraordinary circumstances, for example if a case has foreign policy implications.

Since then, it has become routine at confirmation hearings for attorney general nominees to have senators pledge that they will oppose any attempt by the president to politicize law enforcement by infringing on issues of prosecutorial judgment and discretion.

While the Republican Party has changed in response to Mr. Trump’s influence, attacks on federal law enforcement — which can be traced back to the early 2017 Russia investigation — are opposition to his firing of then-FBI Director James B. Comey. Jr. appointment of Robert S. Mueller III as special counsel — have become entangled in the ideology of his supporters.

Trump’s biggest rival for the Republican nomination, Florida Governor Ron DeSantis, also rejects the norm that the Justice Department must be independent.

“Republican presidents have accepted the canard that the DOJ and the FBI – I quote – are ‘independent,'” Mr. DeSantis said. said in May on Fox News. “They are not independent agencies. They are part of the executive branch. They are accountable to the elected president of the United States.”

Several other Republican candidates acknowledged that Trump’s handling of classified documents — as outlined in the indictment prepared by special counsel Jack Smith and his team — posed a serious problem. But even these candidates — including Senator Tim Scott of South Carolina, former UN ambassador Nikki Haley and former Vice President Mike Pence — have also accused the Justice Department of being overly politicized and administering unequal justice.

The most powerful conservative think tanks are working on plans that go far beyond “reforming” the FBI, even though Senate-confirmed directors have all been Republicans in modern times. They want to tear it up and start over.

“The FBI has become a political weapon for the ruling elite rather than an impartial law enforcement agency,” said Kevin D. Roberts, president of the Heritage Foundation, a mainstay of the conservative movement since the Reagan years. He added: “Small reforms that increase accountability within the FBI are not up to the mark. The FBI must be rebuilt from the ground up – reform in the current state is impossible.”

Conservative media outlets and social media influencers have been hammering away at the FBI and Justice Department for months since the FBI’s search for Mar-a-Lago. government to influence the 2016 election.

In its most-watched nightly programs, Fox News has been all in on attacks on the Justice Department, including the allegation, filed without evidence, that Mr. Biden led the prosecution of Mr. Trump. As the former president addressed supporters at his Bedminster club on Tuesday night, Fox News showed a split screen — Mr. Trump on the right and Mr. Biden on the left. The chyron at the bottom of the screen read, “Wannabe dictator speaks at White House after his political rival is arrested.”

As president, Mr. Trump viewed his attorney general as just another one of his personal attorneys. He was furious when his first attorney general, Jeff Sessions, backed out of the Russia investigation — and then refused to go back on that decision to close the case.

After firing Mr. Sessions, Mr. Trump thought he had found someone to do his bidding in William P. Barr, who held this role during George HW Bush’s presidency. Mr. Barr took a comprehensive look at a president’s constitutionally mandated powers and shared Mr. Trump’s critical views on the origins of the Russia investigation.

Under Mr. Barr, the Justice Department rejected career prosecutors’ recommendations on the length of a sentence for Mr. Trump’s longest-serving political adviser, Roger J. Stone Jr., and closed a case against Mr. Trump’s first national security adviser, Michael Flynn, who had already pleaded guilty. Both cases resulted from the Russia investigation.

But when Mr. Trump wanted to use the Justice Department to stay in power after he lost the election, he became furious when Mr. Barr refused to comply. Mr Barr eventually resigned at the end of 2020.