The system works (it’s people that fail)
DOJ independence, the gag order & the rule of law in a healthy democracy
This week, federal prosecutors indicted Democratic Congressman Henry Cuellar, accusing him of taking bribes from Azerbaijan and a Mexican bank.
Surely the thought crossed some beltway minds: “did Biden’s DOJ make a big mistake in bringing criminal charges against a potentially vulnerable House member in a year when control of the chamber is up for grabs?”
But that’s not how any of this works.
No, in a lot of ways, the Cuellar indictment should make you feel a notch more confident about the current state of our democratic institutions. Not because the allegations against a sitting member of Congress aren’t quite serious — but because it shows how the rule of law has not been politicized by the current Department of Justice.
Because it’s not “Biden’s DOJ” and he doesn’t tell it what to do in individual cases. Political calculus has no place in the administration of criminal justice. And prosecuting political candidates during an election can be perfectly appropriate.
As Conor Gaffney and Kristy Parker wrote earlier this week:
[P]rosecuting political leaders is something that should happen in healthy democracies, provided the evidence warrants it, the case is brought by a prosecuting authority that has safeguards in place to avoid politicization and that those safeguards are being followed.
By all available evidence, the indictment of Henry Cuellar appears to have been made within those safeguards. And the political dimensions of this case — a prosecution of a powerful Democratic congressman in a competitive district by a Department of Justice in a Democratic administration — only underscore that this prosecution appears to be one initiated without any improper political considerations.
Put another way: no democracy in the history of the world has successfully avoided any wrongdoing by its elected leaders. But healthy democracies prosecute that wrongdoing with an impartial and apolitical application of the rule of law.
DOJ independence is a cornerstone of our system
The key to all of this, as Conor and Kristy explain, is “DOJ independence.”
This precedent exists in large part by operation of the longstanding norm of DOJ independence — the idea that the White House should not interfere to direct or control specific enforcement matters. Over the years, policies, procedures, practices and structures within the DOJ have developed to ensure this norm is adhered to across administrations. And the courts and Congress have ratified this norm, baking a presumption that prosecutorial decisions are made without improper considerations into a number of legal doctrines and drafting criminal statutes against the background assumption that they will be enforced neutrally and objectively by an independent and professional DOJ. The result: prosecutions based on evidence, not on politics. Representative Cuellar’s indictment is just the latest example of DOJ independence at work.
But their reassurance also carries an implicit warning.
Our system works through rules, like DOJ independence, that depend on everyone accepting and upholding them. That doesn’t mean there aren’t constitutional and legal principles that limit politicized prosecutions — there very much are (look out for a forthcoming report explaining these limits!).
But it means these rules are likely to be the first targets should an autocrat work to dismantle the rule of law, as Donald Trump aims to do (see The Authoritarian Playbook for 2025).
Read Conor and Kristy’s whole piece here.
In Trump’s criminal trial, just another defendant
In other the-system-is-working news, the New York judge in Trump’s hush money case has demonstrated that he is going to treat Trump as he would any other criminal defendant, finding him in contempt of court for violating the court’s gag order for a second time. This violation, like the first, resulted in a fine. But a third could bring jail time.
According to Genevieve Nadeau:
To be sure, Trump is already receiving considerable leeway from the state court. Most criminal defendants would be jailed for repeatedly violating a judge's gag order and attacking the jury; they wouldn't get three strikes. Still, the court has made amply clear that jail time is on the table for Trump should he continue to flout the court's gag order.
We'll see if the system holds and the judge applies the rules fairly and neutrally, even when that means applying them to the presumptive presidential nominee of a major party. To do anything else would be fundamentally anti-democratic.
Institutions are just people — and they can fail
But it’s not all-systems-go this week.
Judge Aileen Cannon of the Southern District of Florida indefinitely postponed Trump’s classified documents case, playing into his delay strategy and essentially voiding the public’s right to a speedy trial. Not a surprise, but still a disappointment. And another disturbing sign that some important members of the judicial branch aren’t treating attacks on key democratic institutions with the urgency they deserve.
A former president allegedly took (stole?) sensitive national security documents, repeatedly refused to return them when asked and kept them poorly secured at his private club. And the voters will likely not hear the details about it before the next election.
A sobering reminder that institutions are, really, just people. The “system” is simply thousands of people tasked with doing a job.
And people can mess up. They can — and they will — fail sometimes. But that makes it all the more important that each and every one of us does everything we can to uphold our part.
Democracy is not going to protect itself. See you next week.
What else we’re tracking:
Reminder: we’re starting a monthly book club. First up, Ari Berman on his new book, Minority Rule on May 22nd. Join us.
Lots of speculation this week about who Donald Trump will pick as a running mate, but as Jamelle Bouie writes, he seems to have only one main criteria: “You cannot say that you’ll accept the results of the 2024 election.” (Why on earth anyone would look at what happened to Mike Pence and say “I want that” is beyond me.)
The Insurrection Act is ripe for abuse. Congress should reform it, William Galston writes in the Wall Street Journal.
In a widely discussed interview with Semafor, Joe Kahn, The New York Times’ executive editor, discussed how he sees the media’s role in democracy. Examples of pushback: Greg Sargent argues how accurately covering threats to democracy is “not remotely the same as being in the tank for Biden,” and John Harwood explains how Trump’s threat to democracy should be the biggest political story of 2024. (To be clear, this is Protect Democracy’s recommendation: cover threats to democracy as what they are — critical news stories distinct from politics. If you’re hedging coverage based on perceived electoral benefits to one candidate, in either direction, you’re doing it wrong.)
Speaker Mike Johnson survived on a bipartisan vote to keep him in his job, demonstrating yet again how Congress today is essentially a de-facto coalition government. (From February: why coalitions are good and why more parties would make this sort of productive governance easier, not harder.)
“The New Propaganda War.” Anne Applebaum’s new cover story for The Atlantic paints a daunting picture of the global autocratic alliance and their evolving tactics.
“I can’t talk anymore! I’m in Rome, it’s the middle of the night, and I’m writing the Magna Carta!” A delightful tale of local democracy and the challenges — and explosive energy — of democracy on the local scale. From Joe Matthews.