Justice, though a nonpartisan goal, must be upheld by institutions that are vulnerable to the partisan biases of its officers. Especially at risk for partisan interference are investigations and prosecutions surrounding political corruption, especially at the federal level. The Department of Justice under the Trump administration made this risk very clear. I would like to examine some of the Department of Justice investigations into the Trump campaign and administration as a collective case study about the effectiveness of checks against partisanship in federal political corruption cases.
I will begin by giving a general timeline of important events surrounding the Trump probe. At the beginning of 2017, the Department of Homeland Security and Office of the Director of National Intelligence made a joint statement asserting that they were confident that the Russian government interfered in the 2016 presidential election. Following this statement, then-FBI director James Comey launched an investigation into possible collusion between the Trump Campaign and the Kremlin. Not long into the investigation, President Trump fired Comey and justified his decision by citing Comey’s handling of the investigation into HIllary Clinton’s private email server, although many people in Washington, including veran FBI officers, suspected partisan motivation in Trump’s decision.
Soon after, Deputy Attorney General Rod Rosentein appointed Robert Mueller as special counsel to oversee an FBI investigation into Russian interference in the 2016 election and into potential links between the Trump campaign and Kremlin agents. The purpose of appointing a special counsel to a political probe to help insulate the investigation from political interference from Congress or the Executive, since special counsels are under the direct supervision and report to the Attorney General; I will say more about special counsels and their role in corruption investigations momentarily. In 2020, Rosenstein explained his decision: “I decided that appointing a special counsel was the best way to complete the investigation appropriately and promote public confidence in its conclusions.”
Throughout the investigation, Trump challenged the legitimacy of the investigation, repeatedly referring to the investigation as a partisan “witch hunt” (despite the fact that almost every major participant in the investigation was a member of Trump’s own political party). What accompanied the rhetoric from Trump and his administration were threats and legal tactics that had constitutional law scholars debating the scope of executive power, as well as public concern over the conflicts of interest that when politicians have discretion over investigations into themselves. Irrespective of one’s convictions about the legitimacy of the Mueller investigation, everyone should recognize that the investigation put on display some deeply troubling problems with political corruption investigations and prosecutions, problems that will be exacerbated and become more important as political polarization in the United States worsens.
Trump is not the first president who has invoked executive powers in order to evade investigation. It is worth comparing Trump’s response to a criminal investigation with responses of other former presidents. Former president Richard Nixon infamously attempted to use Executive Privilege to withhold audio recordings of conversations in the Oval Office during the Watergate investigation. (It was out of Watergate that the judiciary acquired the constitutional power to create special counsels that the Attorney General could not remove “without good cause” after the 1988 Supreme Court case Morrison v. Olson.) And former president Bill Clinton made a plea bargain, agreeing to a five-year suspension of his Arkansas law license and to pay $25,000, in order to get special counsel Robert Ray to end his investigation without filing any criminal charges for perjury or obstruction of justice.
But while former presidents and other political officials have leveraged their power and political influence to affect the proceedings and outcomes of corruption investigations, the tactics that Trump’s administration used and considered using were so unprecedented that they not only broached fundamental constitutional questions about the limits of executive power but also challenged the integrity of justice institutions. Trump’s Attorney General Jeff Sessions was legally mandated to recuse himself from the Russia investigation, forcing deputy Attorney General Rod Rosenstein to assume duties over the investigation. Trump responded in part by firing and replacing Sessions with William Barr.
Trump also challenged the investigation head on, firing then-lead investigator James Comey by citing his unsatisfactory handling of the investigation into Hillary Clinton’s emails. After the investigation was then handed over to special counsel Robert Mueller, both republican and democratic members of Congress warned Trump against attempting to interfere with or otherwise obstruct the investigation.
However, the Trump administration continued to undermine Mueller’s efforts, despite the investigation leading to multiple indictments and successful prosecutions of members of the administration. For example, when Mueller released his final report, finding that there was unequivocal evidence of Russian interference in the 2016 election, Barr quickly and misleadingly interpreted the report as absolving Trump of any related criminal misconduct. Barr’s summary of the Mueller report, which Mueller himself rebuked as lacking context, threatened to undermine the whole purpose of appointing a special counsel to the Russia investigation Barr then launched an investigation into the origins of the Russia investigation itself by appointing a new special counsel, so that its investigation into the Russian investigation would be insulated from the Biden administration.
While there are so many more examples of partisanship in Trump’s Department of Justice, what was clearly on display was hyper-partisanship in the management of corruption investigations.
While the Department of Justice, as well as intelligence agencies like the FBI, may be able to maintain nonpartisanship in how it carries out criminal investigations and prosecutions, political corruption cases are the most likely to motivate partisanship interference, both internal and external.
While the reputation of the Department of Justice was not irreparably marred by the Trump administration, the Department of Justice faces the challenge of increasing political polarization. This polarization, even if not manifested in the agencies themselves, will likely generate more criminal corruption proceedings and interference with those proceedings.
How the Department of Justice manages investigations and prosecutions like those surrounding the January 6 insurrection and Clarence Thomas’s non-recusal controversy will have a significant influence on both the actual and perceived partisanship of the Department of Justice and other federal agencies. We as a society cannot afford for the Department of Justice to slide into partisanship, nor can we afford the public to lose faith in the possibility of a nonpartisan justice institution.