Congress is supposed to be a powerful check on President Trump’s undeniably authoritarian instincts. But a letter from the Justice Department to the House Judiciary Committee suggests that the opposite is happening — that Congress is actually encouraging Trump to investigate and prosecute his political enemies, something that typically only happens in authoritarian countries.
The letter, from Assistant Attorney General Stephen Boyd, says it’s possible that the Justice Department might appoint a special prosecutor to investigate Hillary Clinton. “The Attorney General has directed senior federal prosecutors [to investigate whether] any matters merit the appointment of a special counsel,” Boyd writes, in response to an inquiry about a Clinton investigation from House Judiciary Chair Bob Goodlatte (R-VA) earlier this year.
Legal experts describe Boyd’s letter as a kind of dodging tactic, one that’s designed to frustrate Goodlatte’s push for a Clinton special prosecutor. The text of the letter doesn’t actually commit to appointing a special prosecutor, but instead assigns prosecutors to investigate whether appointing one would be appropriate. Since there aren’t good grounds to prosecute Clinton, they would presumably recommend against appointing one — giving Boyd and Attorney General Jeff Sessions ground to declare the matter closed.
But experts also warned that this tactic might not succeed. Merely dangling the possibility of a Clinton investigation will increase the pressure on Sessions to go after her. President Trump himself, who has long called for investigations into Clinton, appears to be the strongest source of such pressure.
It’s strikingly unusual for the DOJ to send prosecutors to even begin looking into trumped-up charges against the president’s vanquished general election opponent. Were they to actually do it, we’d be in the type of territory typically reserved for regimes where the law is twisted to punish dissent — Russia under Putin, for example.
This whole affair isn’t a story of Justice Department lawlessness, at least not yet. It’s a story of the professional bureaucracy doing what it can to defuse a brewing political crisis — one created by a president who seems willing to abuse his power and a Republican congressional majority inclined to egg him on for political gain.
“If anyone is acting inappropriately here, it’s the House Republicans who provoked this whole thing in the first place,” says Steve Vladeck, a law professor at the University of Texas Austin. “If we hadn’t had a year of, ‘Lock her up,’ this wouldn’t be anywhere near the contretemps that it is.”
What the letter does — and doesn’t — mean
Boyd’s letter is not a sign that the Justice Department is immediately gearing up to appoint a special prosecutor to go after Clinton, as some media outlets and public figures have misleadingly suggested. Richard Painter, a former Bush administration ethics attorney, tweeted that “it is an abuse of power to go after political opponents” and that “at this point there is no choice but for Congress to impeach.”
Yet if you read the letter’s text carefully, it doesn’t actually promise to do anything: It merely suggests that Justice Department prosecutors will look into various options for investigating Clinton, not that it will pursue any of them. There is no promise whatsoever that the result of this will be any kind of formal investigation into, let alone prosecution of, Clinton.
This appears to be a somewhat canny response to the House, one designed (at least in theory) to defuse political pressure for a Clinton prosecution.
The issue Goodlatte wants the Justice Department to investigate — Obama administration approval for the 2009 sale of the Canadian company Uranium One to Russian investors — has been entirely ginned up by conservative media. As my colleague Zeeshan Aleem explains at length, there is no evidence to suspect that Clinton improperly influenced the decision to approve the sale, which came from nine different US government agencies at the sub-Cabinet level. Any investigation of the issue by nonpartisan DOJ prosecutors would almost certainly yield a recommendation that the matter be dropped.
Instead of just dismissing Goodlatte’s letter out of hand, which would have created more of a controversy, it seems like Boyd’s goal is to give Sessions a justification for eliminating the specter of a Clinton special prosecutor altogether.
“It seems calculated to relieve pressure from both congressional Republicans and President Trump,” Andrew Wright, a legal scholar at Savannah Law School, says of the letter. “DOJ leaders seem to be trying to feed the #LockHerUp beasts some scraps in order to keep them at bay. Reading between the lines, the goal here seems to be to protect DOJ integrity.”
That’s not to say that this letter is normal or some kind of ordinary or pro forma thing. It’s quite scary that we’re even discussing an investigation into Clinton.
But experts say the bad actor here isn’t the Justice Department. It’s Congress, specifically Goodlatte, for forcing the issue in the first place.
“This sort of political pressure for criminal investigations is toxic stuff,” Ben Wittes, a law and national security specialist at the Brookings Institution, tweeted last night. “It's not the way the Justice Department is supposed to work.”
Republicans are feeding some of Trump’s worst instincts
The overall controversy surrounding the letter points to a dangerous and growing synergy between the political interests of congressional Republicans and President Trump’s most authoritarian instincts.
“Lock her up” was a common call and response at Trump’s campaign rallies last year. The future president most famously suggested that he was interested in appointing a special prosecutor to investigate Clinton in a presidential debate last October.
“If I win, I'm going to instruct the attorney general to get a special prosecutor to look into your situation because there's never been so many lies, so much deception,” Trump said to Clinton. “People have been, their lives have been destroyed for doing one-fifth of what you've done.”
At the time, Trump was referring to her use of a private email server as secretary of state, which the FBI had publicly announced was not a crime. Today the calls for an investigation typically center on Uranium One. The insistence on investigating Clinton in both cases, despite no evidence of any criminal wrongdoing, points to a fundamental lack of respect for actual legal standards of proof, political norms, and the rule of law on Trump’s part.
The current president possesses “what you might think of as autocratic tendencies,” Sheri Berman, a professor at Barnard College, told me earlier this year. “What he would like to do is eliminate all sources of opposition to him — indeed, even sources of criticism of him — and he’s willing to do pretty much anything to do that.”
The framers of the US Constitution anticipated a president like this, which is why there are so many formal checks on the president’s authority. But those checks depend, fundamentally, on Congress being willing to act. If they don’t pass laws blocking a Trump power grab, then the president can basically do as he’d like.
The Boyd letter is so worrying because it shows that at least some powerful Republicans are doing worse than abdicating responsibility: They’re encouraging Trump to investigate Clinton, seemingly at the behest of conservative media outlets that are aggressively pushing the Uranium One narrative.
The ultimate risk here is a kind of authoritarian doom loop. Trump calls for a Clinton special prosecutor, conservative media provides whatever evidence it can find to support the need for such an investigation, Republicans in Congress demand an investigation into that evidence, which then leads to Trump putting even more pressure on Sessions to appoint a special prosecutor.
None of this means that a Clinton prosecution is likely. The loop could be defused by the Boyd letter and the broader commitment of Justice Department prosecutors to the rule of law. But it does suggest that Trump is seriously willing to countenance a politically motivated prosecution that’s virtually unheard of in a Democratic country — and that the people tasked with restraining him are actually egging him on.
“The power of suggestion clearly has an impact on this president,” Vladeck says. “I’m sure that’s what the congressional Republicans who started this uproar are counting on.”