This Is How Bad It’s Gotten at the Justice Department
When
civil servants resign, skeptics often ask what difference one person really can
make by leaving. The answer is: a lot.
By Neal K. Katyal and Joshua A. Geltzer
The
authors are law professors at Georgetown.
·
Sept. 17, 2020, 5:00 a.m. ET
In his time as the head of the Justice
Department, Attorney General William Barr has alienated many federal
prosecutors. The latest appears to be Nora Dannehy, a longtime prosecutor who
has resigned from the department, where she was part of a team looking into the
Russia investigation.
We don’t know for sure exactly what
happened; she isn’t talking, nor is Mr. Barr. But The Hartford Courant, which
broke the story, reported that
Ms. Dannehy’s colleagues said that she departed because of Mr. Barr’s
politicization — in particular, because Mr. Barr is evidently eager to break
drastically with past practice and issue an incomplete report intended to help
President Trump in his re-election efforts.
Her resignation looks like part of an extremely
troubling pattern. Earlier this year, highly respected prosecutors in the
Michael Flynn and Roger Stone cases dramatically resigned or withdrew. One of
them testified to Congress that
the Justice Department under Mr. Barr was treating Mr. Stone “differently from
any other defendant because of his relationship to the president.” The Justice
Department inspector general has opened an
investigation.
When civil servants
resign, skeptics often ask what difference one person really can make by
leaving. The answer is simple: a lot. Ms. Dannehy’s departure isn’t just
likely a major assertion of integrity by her; it’s also a big problem for Mr.
Barr — and therefore for Mr. Trump.
The resignations are a forceful public
signal that something is seriously awry with the Justice Department under Mr.
Barr. A hallmark of the department, where both of us worked, is its tradition
of political independence, forged over decades since its
creation in 1870. Neither of us ever heard of career civil servants
resigning because they believed the attorney general was acting politically.
Never — and that’s even accounting for the department’s strong conservatives
and liberals in its career ranks.
Mr. Barr’s bizarre project,
headed by John Durham, the U.S. attorney for Connecticut, was created to
reinvestigate the investigators of Russian election interference and to cover
ground already explored in detail by the department’s inspector
general. Ms. Dennehy’s departure casts real doubt on Mr. Barr’s design to try to vindicate Mr. Trump’s narrative that he was targeted in 2016 by the
“deep state.”
Ms. Dannehy poses a looming further
threat to Mr. Barr. She didn’t just withdraw from the investigation; she
resigned from the department entirely. That means Mr. Barr can’t muzzle her —
and, in turn, she can warn Congress and the rest of us about what prompted such
a dramatic move by a highly regarded career public servant who had previously
managed to oversee the investigation into the politically fraught firings of
seven U.S. attorneys in the George W. Bush administration.
She will have constraints like
attorney-client privilege and classification. But that still leaves plenty of
room to unmask Mr. Barr’s shenanigans. That should happen immediately in
testimony before the House of Representatives. To lay bare Mr. Barr’s mischief
is, in significant part, to defang it. This, not Mr. Durham’s unfinished
report, is what needs to happen before the election.
Even in just the past week, Ms. Dannehy wasn’t the only person to resign. A state prosecutor serving on Mr. Trump’s presidential commission on law enforcement quit, too. And a senior Department of Homeland Security official filed a whistle-blower complaint accusing Chad Wolf, the acting secretary of Homeland Security, of ordering him to suppress intelligence on Russian election interference and white supremacist violence, in part because it “made the president look bad.” These unusual actions have one thing in common: In every instance, they put the interests of Mr. Trump ahead of the country’s.
Mr. Trump has distorted the department
in three ways. First, Mr. Trump has made the executive branch and its awesome
powers a tool to promote not the nation’s interests in justice but his own
political fortunes. That’s also what he was impeached for: Instead of
providing the military assistance to Ukraine that Congress appropriated for our
national security, he withheld it to try to besmirch Joe Biden. And then, too,
career servants were the ones who spoke out against the scheme.
Second, the president has deceived
citizens about the most serious threats we face — all because Mr. Trump
believes doing so serves him best. The energizing force behind
the Durham investigation is the absurd notion that America is more threatened
by law enforcement’s efforts to protect us from Russia in 2016, than from
Russia’s malevolent acts. Mr. Trump’s chief of staff, Mark Meadows, recently
made this motivation all too clear: Like Mr. Trump and Mr. Barr, he went
against longstanding practice by commenting on an unfinished investigation.
He claimed that
he’s reviewed “additional documents” related to the Durham investigation that
supposedly reveal that key Obama administration officials “are in real trouble
because of their willingness to participate in an unlawful act.” He couldn’t
specify what the “unlawful act” was.
Third, and perhaps scariest of all, Mr.
Trump has not always defended our country against our enemies. He rejected what
our intelligence community said about the Russians’ efforts in 2016 and never
punished them. Similar efforts continue today, and still Mr. Trump has focused
on manufacturing innuendo rather than ensuring a fair election.
America’s framers understood the
presidency “to be a fiduciary position, a
position of trust.” In turn, those who become civil servants
bestow their own trust that all presidents — regardless of party
— will take seriously the executive branch entrusted to them. Mr. Trump is
violating that trust, ever more frequently, ever more flagrantly, with help
from allies like Mr. Barr as he tries to bend the executive branch to serve his
personal will. Public servants are telling us it’s unsustainable. It’s on the
rest of us to listen.
Neal K. Katyal (@neal_katyal), a
former acting solicitor general of the United States and the author of “Impeach: The Case Against Donald Trump,” and Joshua A.
Geltzer (@jgeltzer), a former deputy legal adviser and senior
director for counterterrorism at the National Security Council, are law
professors at Georgetown.