MAGA discovers the downsides of a politicized DOJ

Jeffrey Epstein, trust, and the death of independent law enforcement

Photo: The Associated Press, Evan Vucci

We need to talk about Jeffrey Epstein. But not the scandal or the president’s erratic and inexplicable attempts to get his supporters to stop talking about it.

Instead, look at what this all reveals about the Department of Justice — and public trust more generally.

Yes, trust in law enforcement has been on the decline for years. But Donald Trump’s second election was a breaking point. Many Americans have suspected that law enforcement was politicized, that politicians called the shots around investigations and prosecutions. But at least since Watergate (more on that in a second), that mostly wasn’t the case — until the Trump presidency. And, in particular, this administration. Now, in six months, Trump has almost obliterated the post-Watergate bulwarks that protected the Department of Justice from politics. Today, it really is true that federal law enforcement is beholden to politics, with profound and disturbing consequences for all Americans, including the people who propelled Trump to the White House. Not in all cases, to be sure, but in those where the president has a personal, financial, or political interest.

This is a story about heinous crimes against at least 150 victims, accountability, truth — and, above all, the public’s faith that their government is not lying to them. It didn’t start with Epstein, and it won’t end there. It’s not going away until somehow, someday, we rebuild those bulwarks around the people tasked with enforcing our laws.

Stay with me.

No one trusts the Department of Justice

What is going on with Donald Trump and Jeffrey Epstein?

That’s what’s on everyone’s mind. For years, Trump and his supporters promoted and capitalized on conspiracy theories about a cover-up of the financier’s criminal child sex trafficking enterprise. He and his supporters campaigned on those theories, promising to release “the files.” In February, Attorney General Pam Bondi made a large show of releasing the “first phase” to right-wing influencers. That same month she claimed she had a list of Epstein’s clients “sitting on my desk right now.”

Then suddenly, this week, the tune changed. Bondi insists there’s nothing to see, and Trump took to social media to claim it’s all a “hoax” and “bullshit” and that any of his supporters continuing to ask questions are “weaklings.” He tried to kill a Wall Street Journal story about an enigmatic and innuendo-filled birthday letter to Epstein in 2003: Jeffrey Epstein’s friends sent him bawdy letters for a 50th birthday album. One was from Donald Trump (gift link).

When asked if he would consider appointing a special counsel, the president’s response:

“I have nothing to do with it.”

POLITICO’s Ankush Khardori, a former DOJ prosecutor, summarizes the president’s strange behavior with three possibilities:

1. Did Trump and his supporters shamelessly exploit a terrible child sex trafficking tragedy for their personal political and financial gain only to have it backfire on them when the jig was up?

2. Does the Department of Justice’s evidence include references to Trump leading them to engage in a cover-up to protect the president?

3. Or was this all just a colossal mess-up where officials genuinely believed conspiracy theories, were surprised to find no evidence existed to validate them, and badly mishandled the fallout?

(The whole piece is good, I recommend reading it — especially if you need a summary of what the heck is going on.)

But whatever is happening, I don’t think anyone, either Trump supporter or Trump critic, really trusts the DOJ’s handling of this case. That is a big deal. Effective law enforcement is built on trust. Our society quite literally empowers officials like Bondi, trusting that they will pursue truth wherever it leads, and we trust they won’t lie to us in a politicized cover-up.

When it comes to Epstein, that was a selling point for many of Trump’s supporters — that he would ostensibly appoint law enforcement officials they felt they could trust to find and expose a hidden truth, regardless of how politically damaging it may be.

But now, because of how this has all been handled, that promise has been broken. Not necessarily because Bondi and others may be lying (I don’t think we know). Rather, it’s that if the evidence pointed towards misdeeds by Trump or allies, the DOJ seems very unlikely to pursue accountability.

Independent law enforcement helps maintain public trust

Which brings us back to why protecting the DOJ from political interference — and the catastrophic demise of prosecutorial independence under Trump — is such a massive and, frankly, under-discussed story, including among Trump supporters.

After Nixon’s many abuses of the Department of Justice during the Watergate era shattered the public’s trust, a whole raft of reforms sought to rebuild confidence in law enforcement. The main fix was simple: implement a firewall between elected officials — above all, the president — and the people charged with enforcing our laws.

Before Trump, leaders of both political parties broadly supported those guardrails. Presidents Biden, Obama, Bush, Clinton, Reagan, and so on all avoided instructing the attorney general how to proceed on specific cases. Including civil and regulatory matters, not just criminal. And there would have been massive public outcry if any of them had done so. (A brief tarmac meeting between then-AG Loretta Lynch and former President Clinton in 2016 was considered a fairly explosive scandal at the time.)

The power to investigate, indict, and even imprison potential opponents is ripe for abuse, far more so than regulatory or policy questions. Case in point: Tyrants around the world frequently weaponize law enforcement to silence enemies. Russian opposition leader Alexei Navalny died under suspicious circumstances in a Siberian prison camp after being convicted of “extremism.” (His lawyers were also prosecuted and imprisoned.)

On the flip side, the decision not to charge someone can also be easily abused — either in exchange for bribes or political favors.

That’s why there’s such a nexus between independence and maintaining public trust. When there were clear guardrails between politicians and law enforcement decisions — including decisions about what information to share with all of us — we had more reason to trust law enforcement officials were putting truth and law and justice above personal or political concerns.

We no longer have any such assurances.

Under Trump, the White House calls the shots at the DOJ

This is far from the first instance where the White House — or at least, political considerations of the president’s interests — seems to be guiding decisionmaking at the Department of Justice. In the last six months:

• Trump fired the FBI director (whom he had appointed in 2017) before the end of his 10-year term and replaced him with an avowed loyalist, Kash Patel.

• He signed executive orders instructing the DOJ to investigate two former aides who criticized him.

• Trump allies forced the DOJ to drop criminal charges against New York Mayor Eric Adams after Adams offered what prosecutors believed “amounted to a quid pro quo,” that he would “assist with the Department’s enforcement priorities only if the indictment were dismissed.” (This led to a wave of resignations from career prosecutors).

• The Justice Department has purged at least 35 career prosecutors who worked on criminal cases against January 6th defendants.

• The department is currently investigating two prominent Trump critics, former CIA Director John Brennan and former FBI Director James Comey.

• A prominent DOJ appointee declared that he and other prosecutors are “President Trump’s lawyers.”

• Trump and allies are pressuring the DOJ to investigate California Senator Adam Schiff, a prominent critic.

• Attorney General Bondi this week fired the department’s chief ethics official, as well as one of the Epstein prosecutors, without explanation.

To be clear, contrary to President Trump’s claims that law enforcement was already “weaponized,” this is very much not how the Department of Justice used to work. Yes, the DOJ under Biden indicted Trump and his allies for alleged crimes in the effort to overturn the 2020 election — but with an independent prosecutor who made his case to a grand jury. Also in that time period it indicted a powerful Democratic senator, a powerful Democratic congressman, and even the Democratic president’s son. And the prosecutor who indicted Trump was a special counsel operating under even stricter protections from political influence. All of those were positive signs. Clear indicators that law enforcement officials were likely putting truth and justice over politics in both directions.

But now, in this new world of a politicized DOJ, it doesn’t really matter if Trump explicitly “orders” Bondi to do (or not do) something. He doesn’t need to. It’s clear that the DOJ leadership sees themselves as beholden to the president’s interests, responsive to his wishes, and motivated by his political standing. Not just in setting broad policy and priorities but in how they handle very specific investigations and prosecutions.

Which is why, as many Trump supporters are suddenly discovering, it’s hard to take anything they say at face value.

One way or the other, independent law enforcement must be rebuilt

Vast majorities of Americans, including Republicans, want the Justice Department to release its files on Epstein.

To be clear, I don’t think anyone expects everything — identities of victims and so on must be kept private, and there may be good arguments against releasing more information. I certainly don’t have a clear view on what needs to be shared. Really, though, what the American public wants is assurance that their government is not lying to them about one of the most notorious and awful criminals of the modern era to protect people in power from accountability.

In the long term, the only way to really give them that is to restore prohibitions on political interference in law enforcement. To make it so those same powerful people do not get to directly meddle with investigations and prosecutions.

To be clear, if in a post-Trump-era we get the opportunity to rebuild that independence, it will still be a monumental task.¹ Trust, once lost, is much harder to regain. And it’s not like our system was perfect at holding powerful people accountable before Trump took office. But there’s not really an alternative other than some version of this situation over and over again forever. (Just imagine the potential downward spiral of scandal and retribution we could be in for if this becomes the new norm!)

So until then, don’t accept politicized law enforcement as normal. Don’t resign yourself to a world where the official version of truth and justice are subservient to the interests of the president or any other politician.

And most importantly, find opportunities — like with Epstein — to point out how we all would be better off being able to trust that law enforcement decisions were made neutrally, by public-service oriented professionals, and devoid of politics.

As opposed to whatever this is.

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Another independent bastion under attack

Beyond DOJ, there’s another institution in Washington that’s supposed to be firewalled from politics. The Federal Reserve. Think of it as the steering wheel of our economy with the power to either maintain stability and prosperity through long-term policymaking or to crash into the rocks of inflation or recession in pursuit of a short-term boost.

Since his first term in office, President Trump and his allies have attacked and threatened to take over the Fed — from calling Fed chair Jerome Powell a “bonehead” to exploring the possibility of firing Powell and setting interest rates himself. In the latest escalation of the administration’s attacks on the Fed’s independence, the president has reportedly drafted a letter firing Powell once and for all. While the president later denied that he planned to fire Powell in a press conference, it’s worth understanding what his continued attacks on the Fed could mean for American democracy and, in turn, our economy.

Last year, Ori Lev wrote about the dangerous consequences of squashing central bank independence: How an autocrat could wreck the economy.

History has shown that similar accretions of executive power exercised at the whims of a leader tend to undermine both long-term economic performance and the rule of law that undergirds free and competitive markets.

Neither outcome is ultimately business friendly.

Read the whole piece here.

But… a major court win may help stave off worst-case scenarios

Some good news on that front. Yesterday, our client, FTC Commissioner Rebecca Kelly Slaughter, won her case against the Trump administration’s illegal attempts to fire her without cause.

District Judge Loren AliKhan ruled that the firing was illegal “under a 1935 Supreme Court precedent that prevented a president from unilaterally firing officials at independent agencies.”

The case has already been appealed to the D.C. Circuit Court of Appeals and may go to the Supreme Court after that. As the litigation proceeds, we will continue to defend the protections around critical agencies like the FTC and the Federal Reserve.

But for now, our client, Commissioner Slaughter, said it best: “The law is clear, and I look forward to getting back to work.”

Read more about the case here.

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What else we’re tracking:

• Speaking of politicization, the Department of Justice seems to be targeting election officials in key states, reports The Washington Post (gift link).

• More than 900 former DOJ employees urged the Senate to reject Emil Bove, the hardline Trump loyalist nominated for an appeals court seat. (Read more on Bove here.)

• Excellent summary of the administration’s unlawful refusal to enforce the TikTok ban, and the many implications, from former White House Counsel Bob Bauer.

• Tulsi Gabbard and Kash Patel are turning their agencies against their own staff, writes Tom Nichols in The Atlantic: Tinker Tailor Soldier MAGA (gift link).

• Trump loyalist interim U.S. Attorney Alina Habba’s term expires on Tuesday. What happens next?

• In a remarkable show of collective action, over 600 nonprofit and nonpartisan orgs spoke out against the House Homeland Security Committee’s unfounded, politically-motivated investigation of nonprofit groups that provide critical services to the American people. Read the joint letter.

• With armed troops on our streets and plans to divert more National Guard JAG officers to immigration enforcement, the risk of militarizing society and politicizing the military poses a direct threat to our democracy, write former JAG leaders in The Bulwark.

• The Supreme Court again intervened in an emergency posture to protect the administration from lower court orders without even explaining its reasoning. This time to allow the dismantling of the Department of Education to go forward.

• I highly recommend this piece by Paul Rosenzweig in The UnPopulist on how the tide is turning on Trump’s attacks on law firms: Big law is finally getting its act together and fighting Trump’s attacks.

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What you can do to help:

It’s almost August recess. Anna Dorman has a tip on how to prepare:

August recess is almost upon us and as anyone who lived through the Tea Party Era knows — this can be a pivotal window to make our voices heard. House members will be on recess from July 25-Sept. 1 and Senators from Aug. 4-Sept. 1.

Start making your plans now. If your elected officials are having local events make a plan to attend and then find 3 friends to bring with you. If they aren't, 1) call their office and let them know this is unacceptable and 2) look for events hosted by other organizations or host your own!

1. The task was made even harder by a passing reference in the Supreme Court’s decision on presidential immunity that seemed to endorse unfettered politicization of the Department of Justice.