Trump’s Politicization of the Justice System

President Donald Trump and U.S. Attorney General William Barr U.S. Capitol in Washington, May 2019.

Since the vast majority of Republican senators failed in their constitutional duty to be a check on serious government corruption, President Donald Trump has repeatedly exhibited his willingness to abuse the power of his office. But involving himself in the U.S. Department of Justice’s (DOJ) recommended sentencing of Roger Stone, a convicted federal criminal—and Trump’s close political ally—was perhaps the most flagrant display of how little respect Trump’s administration has for American democracy.

As the situation develops, the president has attacked not only federal prosecutors but also the federal judge overseeing the case. Throughout his presidency, Trump and his attorneys general have worked to turn the DOJ and the federal judiciary into political puppets, thereby delegitimizing both institutions. This most recent scandal, however, signals that these attacks are only ramping up.

Undermining the DOJ’s independence

After Trump’s longtime confidant Roger Stone was convicted of multiple federal crimes tied to investigations into the 2016 Trump campaign’s efforts to work with Russia—including making false statements, obstructing Congress, and threatening a witness—career prosecutors at the DOJ issued a sentence recommendation of seven to nine years in prison, consistent with the sentencing guidelines that the agency uses to make these determinations. The president subsequently took to twitter to criticize the recommendation as “horrible and very unfair,” adding: “The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”

Quickly, and to the shock of many legal experts, the DOJ overturned its recommendation. Trump congratulated current U.S. Attorney General William Barr for doing so: “Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought.” All four career prosecutors handling the case withdrew within hours of the decision, suggesting significant ethical objections.

Both Trump and Barr deny that they spoke about the matter, although Trump communicates with his Cabinet through social media on a regular basis and has in the past used Twitter to dismiss high-level government officials. Dodging that reality, the DOJ simply claimed that it hadn’t acted in response to the tweet.

While Trump’s and Barr’s actions in this case represent a new level of brazenness, they continue a long line of examples of the president’s and his appointees’ attempts to use the DOJ as a political weapon—starting from the earliest days of the Trump presidency when he began criticizing then-U.S. Attorney General Jeff Sessions for recusing himself from the Mueller investigation. Other examples of questionable behavior indicating the Trump administration’s attempts to wield political influence over the justice system include: Attorney General Barr’s lack of transparency and delays in sending the Mueller report to Congress; evidence of President Trump’s interference in DOJ antitrust decisions affecting press outlets that he dislikes; and, particularly in light of the pressure campaign that Sessions faced, Barr’s decisions not to recuse himself from matters where he had clear conflicts after becoming attorney general.

Unfortunately, because the DOJ’s Office of the Inspector General has so far not issued any sort of findings on possible corruption within the DOJ—making it unique among almost all other executive agencies’ inspectors general—the extent to which Trump’s political wishes dictate DOJ policy remains unclear. However, former prosecutors and officials have been clear in voicing the danger of the president’s actions in regard to Stone, with one former DOJ official summarizing that it amounted to a “shocking, cram-down political intervention.” Adding to the politicized nature of the DOJ’s reversal, the four prosecutors only learned about the decision after Fox News reported it.

Politicizing the federal judiciary

Trump’s efforts on behalf of Roger Stone haven’t stopped at DOJ employees. In the days following the DOJ’s reversal, when it perhaps became clear to Trump that Stone’s fate ultimately rested in the hands of federal U.S. District Judge Amy Berman Jackson, he attacked her personally as a political actor: “Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure? How did she treat Crooked Hillary Clinton? Just asking!”

As with his actions in regard to the DOJ, this rhetoric attempting to delegitimize the courts as biased and political represents an escalation of a pattern. President Trump has previously called the federal judiciary a “joke” and a “laughing stock.” During the 2016 campaign, he claimed that a judge with “Mexican heritage” couldn’t be trusted to rule fairly on a lawsuit alleging fraud by Trump University. He has called judicial opinions that he disagrees with “ridiculous,” and his vitriol has even forced a public comment out of the conservative Chief Justice John Roberts, who denied that the courts deliberated in a political manner.

Ironically, it is Trump who has sought to politicize the judiciary, with strong support from Senate Republican leadership, who have pushed through far-right nominees—despite often strenuous objection from the civil rights and legal communities. He has referred to his judicial appointees as “my judges” and pledged during the 2016 campaign that they would rule along a far-right ideological line. True to his word, Trump has put increasing numbers of his own former political aides on the bench. Many of these aides-turned-judges went straight from Trump’s White House to the bench: For example, Gregory Katsas, who advised Trump on some of the administration’s cruelest anti-LGBTQ policies, and Steven Menashi, who worked with Stephen Miller as the administration carried out anti-immigration policies that have left children dead in U.S. facilities and turned away individuals in need of help at America’s borders, both serve as U.S. circuit court judges. And Neomi Rao, another former aide now on the bench, wrote an opinion arguing that Trump should be able to avoid virtually any congressional oversight, voicing a legal theory that legal experts say could invoke a “constitutional crisis.

Underscoring just how intent Trump and his allies are on bending the judiciary to their own ends, less than an hour after the Senate voted to acquit President Trump, allowing him to avoid consequences for bribing another country to interfere in the 2020 elections, they were moving forward yet another of Trump’s judicial nominees: Andrew Brasher, who managed criminal justice policy for the president as part of his 2016 transition team.

Judge Paul L. Friedman, the secretary of the American Law Institute, highlighted how dangerous this kind of rhetoric around the justice system is: “He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions.”

Conclusion 

An independent DOJ and judiciary are essential to the well-being of American justice. President Trump’s ongoing attempts, with the support of his appointees and allies in Congress, to eliminate that independence should invoke memories of why the Soviet Union abolished all but the trappings of a legal system after taking power. The Trump administration has shown a total disregard for the American constitutional system; immediately after the Senate voted to ignore his crimes, Trump tweeted a graphic suggesting he would stay in office indefinitely—flouting the Constitution.

It is clear that, post-impeachment, Trump and his allies feel as if they have been given a green light to escalate their attacks on the legitimacy of key aspects of the U.S. legal system. If President Trump is ultimately allowed to corrupt them, his administration’s actions will undermine a critical bulwark of American democracy.

Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress.