Cartoon by Rob Rogers

Trump's assault on the department of justice is an attack on the rule of law

Lawrence Douglas, professor of law, jurisprudence and social thought at Amherst College, Massachusetts

The Guardian: It is by now familiar that Donald Trump has turned organized lying into a first principle of governance. Michel de Montaigne’s observation that the “reverse of truth has a thousand shapes and a boundless field” could serve as the future epithet of the Trump presidency.

But this week the president has gone one step further. In forcing the Department of Justice to launch an investigation into “whether Obama’s FBI and DoJ infiltrated or surveilled our campaign for political purposes”, Trump has demonstrated his power to create durable institutional realities out of politically charged falsehoods.

This is a disgraceful but not surprising assault on the independence and integrity of the justice department. The refusal or inability to tolerate the independence of law enforcement officials remains the source of Trump’s most persistent problem. In firing James Comey for refusing to indulge Michael Flynn’s crimes and unwind the Russia investigation, Trump invited Robert Mueller’s appointment. Mueller, as we all know, has been looking into whether this firing constituted obstruction of justice. Now piling deflection on obstruction, Trump seeks to distract attention from his prior malfeasance by turning the tables on his investigators. They are the true criminals.

The strategy is not without its shrewdness. With his slanders parroted by the likes of Devin Nunes and Trey Gowdy and amplified by his satraps at Fox News and Breitbart, Trump has successfully eroded confidence in the neutrality of the independent counsel. A recent CBS News poll shows that a majority of Americans (53%) believed the Mueller investigation to be politically motivated. This most toxic and divisive of presidents has largely succeeded in turning justice into a partisan issue.

As a second matter, in demanding that the justice department investigate the bogus claim of campaign infiltration, Trump manoeuvred the deputy attorney general, Rod Rosenstein, into a perilous position. Rosenstein could have resigned out of protest, a result that certainly would have been agreeable to Trump, who despises Rosenstein precisely because he has largely refused to knuckle under to the president. As any possible future firing of Mueller would have to go through the deputy’s office, forcing Rosenstein to resign would perhaps pave the way for Trump to appoint an official more willing to do his dirty work.

In point of fact, Rosenstein has not resigned. Rather, he referred the matter to the department’s inspector general with the statement: “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action.” This stopped short of launching a criminal investigation, still it handed Trump a victory. He has succeeded in investigating his investigators.

Trump’s manoeuvres are no less odious for their shrewdness. His brazen attempt to discredit federal investigators by frontally attacking the Justice Department’s independence is a dangerous and despicable attack on the rule of law that should be added to the ledger of the president’s impeachable offences.

Which does not make the attack criminal. Trump’s firing of FBI director Comey arguably obstructed justice, a criminal act. Mueller’s investigation will shed light on this matter, though obviously not to the satisfaction of those who insist the president enjoys plenary control over all executive appointees and thus can fire whom he wants, when he wants and for whatever reason he wants – including to frustrate an ongoing criminal investigation of the president’s own activities >>>