A little poetic justice for Donald Trump
The Epstein uproar has revealed an unexpected danger—for the president—of a Justice Department that seems partisan
The “saddest thing” for Donald Trump, he said in an interview during his first term, was that as president he was “not supposed to be involved” with the Justice Department. He was also “not supposed to be involved” with the FBI. That meant he could not be sure the government was “going after” Hillary Clinton. “I’m not supposed to be doing the kinds of things I would love to be doing,” he lamented, “and I am very frustrated by it.”
Now that he has been re-elected, Mr Trump has chosen to do the things he loves, and he has set aside conventions that insulated the Department of Justice from White House pressure. He is paying a price for erasing any expectation the department would operate independently, as it did under Joe Biden in prosecuting prominent Democrats, including his son, Hunter. Mr Trump’s bandying of conspiracy theories about Jeffrey Epstein helps account for the anger of his MAGA base at the nothing-to-see-here position of his top Justice officials about records of the investigation into Epstein. But because he has left no doubt who is in charge, that anger is directed at him, too. “Why is Trump blowing up his base to protect child predators?” wondered Ann Coulter, a fierce advocate of the president, in a column in mid-July.
It could have been worse for Mr Trump: he could have had his first choice for attorney-general, Matt Gaetz, then a congressman from Florida. He withdrew just before the House Ethics Committee said it found “substantial evidence” he had committed statutory rape, an accusation he denied. Unlike Mr Gaetz, Mr Trump’s second choice, Pam Bondi, has deep experience prosecuting crime, including child abuse. She spent 18 years as a prosecutor in Florida, then won two terms as state attorney-general. A lawyer for Mr Trump in his first impeachment, she claimed after the 2020 election that he had won Pennsylvania, which he lost. But before being confirmed as attorney-general she assured senators that politics would play no part in her decisions. The explosion over the so-called Epstein files shows even Mr Trump’s ardent supporters are not comforted by her credentials or assurances.
Like other top Trump appointees, Ms Bondi pairs awe for Mr Trump—“the greatest president in the history of our country”, she has called him—with conviction about the vast powers of his office. In her first day on the job she issued a memo to her department demanding “zealous advocacy” to defend “the interests of the United States”. Those interests, she continued, “are set by the nation’s chief executive” and no attorney could presume to substitute their own judgment. The same day she created a “Weaponisation Working Group” to investigate a special counsel who investigated Mr Trump, and the officials who investigated those who attacked the Capitol on January 6th 2021. Ms Bondi has presided over the departures of many career prosecutors and shifted authority to Washington from US attorneys’ offices. Probably her most sweeping articulation of presidential power came in defence of the president’s decision to defy a law banning TikTok. Abruptly shutting it down, she wrote, would “interfere with the president’s execution of his constitutional duties” regarding national security and foreign affairs. That standard would seem to empower a president to ignore any law touching such matters.
The endless personal drama of Mr Trump and the law—his perils and escapes, his pardons of allies, his accusations of crimes by adversaries—can make it easy to overlook that, in bringing the Justice Department under his thumb, he is not just heeding his own druthers. He is also fulfilling a long-cherished conservative theory about how the constitutional system is supposed to work. Under this theory changes after the Watergate scandal threw the balance of powers out of whack. Congress overreached in passing laws to constrain the president in matters from waging war to managing the budget, while new norms excessively shielded investigators and prosecutors from presidential oversight.
The constitution charges the president with ensuring the law is faithfully executed, and the extent of that authority has never been delineated by Congress or the courts. Mr Trump may not have been wrong when he said, in his first term, “I have an absolute right to do what I want to do with the Justice Department.” Those who embrace such ideas argue that, unlike civil servants, the president can be held politically accountable for his choices. But this confidence seems misplaced when the president is a lame duck, in an era when polarisation has rendered impeachment futile. Further, having the right to such authority does not mean presidents are wise to exercise it, which Mr Trump appears now to grasp, given his recent forays into implausible deniability. “I have nothing to do with it,” he insisted, when asked if he would appoint a special counsel to investigate the Epstein matter—though the White House then said he opposed the idea.
Witless for the prosecution
The erosion of prosecutorial independence does not in itself mean that politics is undermining justice. It certainly does not establish that Ms Bondi made an unprincipled decision in concluding, as an unsigned statement put it, that “no further disclosure” of the Epstein files was “appropriate or warranted”. The opposite could be true: that on studying the evidence, she bravely concluded, not just that she had been wrong to promise “truckloads” of new information, but that Mr Trump had been wrong to commit to releasing the files, and wrong in spreading rumours about Epstein. In any case, another test of Ms Bondi’s integrity, and of Mr Trump’s supporters’ faith in him, lies ahead: endorsing accusations by Tulsi Gabbard, the director of National Intelligence, Mr Trump on July 22nd said Barack Obama committed treason in the investigation into Russian meddling in the 2016 election. “Whether it’s right or wrong, it’s time to go after people,” he said. ■
Correction (July 25th): An earlier version of this column gave an incorrect year for the attack on the Capitol. Sorry.
This article appeared in the United States section of the print edition under the headline “Slime and punishment”