Biggest Hogwash Of The Week: Justice Department Independence From Politics
/Late Friday afternoon (September 26) the U.S. Justice Department filed an indictment against former FBI Director James Comey in the District Court for the Eastern District of Virginia. The indictment is extremely brief — barely one page of text — and focuses only on a single statement made by Comey in sworn Congressional testimony given on September 30, 2020, which statement is alleged in the indictment to be false.
For a few reasons, I’m not going to comment here on the strength or weakness of the indictment. First, the indictment does not allege the related facts that go to whether the statement in question was actually true or false; and I don’t have access to all the facts (like documents that may be in the possession of DOJ) that may be relevant to figuring out the truth or falsity of the statement. And second, it is notable that the indictment was filed on the eve of the expiration of the statute of limitations for this piece of testimony (the five year period after the statement would have expired today), and the indictment may well be amended to add more allegations.
Note that essentially every other commentator on this subject is in the same position that I am in of not being able to make a full analysis of the merits of the indictment. That has not prevented the usual suspects from criticizing President Trump for pushing for the indictment. To some degree, I agree with these criticisms, or at least I am sympathetic to them, to the extent that they criticize the President for seeking to use the justice system to get back at his political enemies.
But then, seemingly in each case, the critics go farther, and assert that with this indictment President Trump has done something totally new and different, and has entirely broken or transformed (or maybe “trampled on”) the former longstanding and proper norms of the Justice Department of never, ever abusing the justice system to attack political opponents. These assertions are not potentially appropriate criticism, but rather are complete hogwash. Indeed they are far worse than mere hogwash, because even if you assume the worst about the indictment of Comey being nothing more than meritless retribution from a vengeful President, the level of political misuse of the Justice Department and justice system by the current administration remains a small fraction of the misuse by the prior regime.
And then there is the much longer history in this country of misuse of the justice system to attack and disable political opponents. I’ll get into some of that below.
Let me start with a few key quotes from the usual suspects. The New York Times in its Saturday (September 27) print edition gives its main front page article the headline “A President of Reprisal Tramples On Safeguards.” (The link goes to a screenshot of the print front page.). From the third paragraph:
The charges, which were filed around 7 p.m. in Federal District Court in Alexandria, Va., thrust the Justice Department into perilous new territory. The push for the indictment tramples over the agency’s long tradition of maintaining distance from the White House and resisting political pressure, and it raised the prospect of further arbitrary prosecutions pushed by Mr. Trump against his enemies.
It’s “trampling” on “long traditions”; it’s taking the agency to “perilous new territory.”
Or we can look at the Wall Street Journal news pages from September 26, where we find a piece headlined “Trump Overcame Internal Dissent to Get His Case Against Comey.” From the sixth paragraph:
[Attorney General Pam] Bondi has effectively transformed the Justice Department in Trump’s second term, from an independent enforcer of the law into an extension of the White House that has pursued Trump’s foes and their associates with relish.
Were these people even alive for the past four years?
The list of Biden/Garland DOJ prosecutions of political enemies is long and disgraceful. That list is obviously not limited to mid-level functionaries like Comey, but included extensive efforts to take out the main political rival, Trump himself. They conducted a completely unnecessary and dangerous SWAT raid on Mar-a-Lago for no purpose other than to try to intimidate a political rival. The whole Florida classified documents case could never have been about more than a technicality, since Trump as President had complete authority to de-classify any documents that he wanted to take with him. Trump’s speech on January 6, 2021 — the subject of the other DOJ criminal prosecution against Trump — was clearly well within the bounds of protected First Amendment expression. You may well think that Trump behaved inappropriately in some respects on that day, and I would agree with you, but that does not mean that it was remotely OK to use the DOJ to prosecute him for a crime. Naming of a “special counsel” (Jack Smith) to give a patina of “independence” to these prosecutions should not fool anyone.
And DOJ’s role in persecuting Biden’s main political rival was not limited to criminal prosecutions. The Comey FBI — part of DOJ — was deeply involved in manufacturing the Russia collusion hoax and in using perjured testimony to get FISA warrants to spy on the Trump campaign, and to continue investigating Trump even after he was President.
And then there is the list of other Trump administration officials or allies prosecuted for fake and politically-motivated reasons: Steve Bannon, Peter Navarro, Walt Nauta (Trump’s valet!), Carlos De Oliveira, Michael Flynn, Jeffrey Clark, and so forth. Was Michael Flynn prosecuted for any reason other than that if allowed to become National Security Advisor he was likely to uncover and blow the whistle on the Russia collusion hoax?
From what I know of American history, Biden ranks far and away as number one among Presidents for the misuse of the justice system against political rivals. But he is by no means the only one to do it. As a few examples:
The Alien and Sedition Acts were enacted in 1798 under President John Adams. They criminalized speech that was found to be “false, scandalous and malicious” or which brought the government into “contempt or disrepute.” Some 26 people were prosecuted under these Acts from 1798 to 1801, mostly newspaper editors for the Anti-Federalist press. The most famous was James Callender, a big backer of Adams rival Thomas Jefferson. To be fair, Callender was a nasty piece of work, but that did not mean that criminal prosecution for speech was OK.
After the Twelfth Amendment to the Constitution in 1804 changed the method for presidential elections, President Thomas Jefferson ditched his VP Aaron Burr. Burr went out to the Western frontier and made efforts to set up an independent country. In 1807 Jefferson initiated a prosecution against Burr for treason — a case in which Jefferson took a major personal role. Burr was ultimately acquitted (in a trial presided over by Chief Justice John Marshall, who was a second cousin, but not a political ally, of Jefferson).
Under President Woodrow Wilson, Congress enacted the Espionage Act of 1917 and the Sedition Act of 1918, which criminalized speech that allegedly disparaged or undermined the war effort (World War I) in any way. Hundreds of people were arrested and prosecuted under this Act. One of those was Eugene V. Debs, a prominent labor organizer and Democrat who ended up running for President in 1920 from prison after getting convicted under the Espionage Act and sentenced to 10 years behind bars.
And don’t forget the prosecution by FDR of Andrew Mellon, one of the leading financiers in the country, who had been Treasury Secretary throughout the administrations of Presidents Harding, Coolidge and Hoover. After Roosevelt’s election, Mellon had become a prominent critic of his economic policies. The prosecution was over technical interpretations of the income tax statute.
So no, there is no grand tradition in the Justice Department of political independence or of not misusing the justice system against political rivals of those in power.
In the case of the New York Times, I might pay at least a little attention to what they have to say today if they had ever said one critical word about the misuse of the Justice Department and the justice system under the Biden administration. If that ever occurred, I somehow missed it — and I pay rather close attention.