Democrats are issuing dire warnings that the rule of law is under attack by President Trump after the Department of Justice (DOJ) overruled career prosecutors to seek a lighter sentence for longtime Trump aide Roger Stone.
The move incensed Democratic lawmakers and raised new questions about potential White House interference at the agency.
“Left to his own devices, President Trump would turn America into a banana republic, where the dictator can do whatever he wants and the Justice Department is the president’s law firm — not a defender of the rule of law,” Senate Minority Leader Charles Schumer (D-N.Y.) said Wednesday on the Senate floor in response.
Many lawmakers called the shocking development just the latest in a series of assaults on the rule of law during Trump’s presidency. For many, the Stone controversy appeared to be a tipping point for the politicization of the top federal law enforcement agency under Trump and what they fear is an unprecedented expansion of presidential powers.
In an early Tuesday morning tweet, Trump had expressed outrage over the DOJ’s initial recommendation that Stone serve between seven and nine years in prison. After the department asked the judge to impose a sentence that was “far less,” Trump on Wednesday publicly congratulated Attorney General William Barr for “taking charge” of the case.
In apparent protest, the entire four-person prosecutorial team on Stone’s case resigned.
Barr on Thursday denied the White House had influenced the decision, telling ABC News that Trump “has never asked me to do anything in a criminal case” and adding, in a rare break with the president, that Trump should “stop the tweeting about Department of Justice criminal cases.”
The DOJ also announced Friday that it would not seek charges against former FBI Deputy Director Andrew McCabe in an investigation into whether he had not been truthful with federal investigators.
Trump pushed back against Barr on Friday, insisting he had a “legal right” to intervene in cases. “I do, but I have so far chosen not to,” Trump tweeted.
Barr’s comments and the McCabe development are unlikely to pacify Democrats who say the attorney general has shown a pattern of working hand in glove with the administration.
The New York Times reported on Friday that Barr had ordered an outside prosecutor to review the criminal case against Michael Flynn, Trump’s former national security adviser, who pleaded guilty to lying to the FBI. Flynn last month withdrew his guilty plea ahead of his sentencing.
Democrats and even some Republicans appeared unnerved that the Stone episode came less than a week after Trump’s impeachment trial ended in an acquittal, undercutting hopes that the experience would leave Trump chastened rather than emboldened.
Although nothing in the Constitution requires the DOJ to be apolitical, presidents for decades have sought to maintain a healthy distance. Trump’s celebration of his hand-picked attorney general’s involvement in Stone’s case caused many to wonder if the traditional firewall had been eroded by politics.
“Long-standing norms about what’s necessary for the rule of law to survive — the very kinds of democratic norms we demand of other countries — are undermined by a prosecutor’s office who takes partisan considerations into charging decisions and sentencing recommendations,” said Robert Tsai, a law professor at American University.
“When this is done to help a political friend or hurt a political enemy, regular citizens rightly worry whether they will be treated fairly without the same access to power and influence,” he added.
Rep. Adam Schiff (D-Calif.), who chairs the House Intelligence Committee and led the prosecution at Trump’s Senate trial, expressed dismay that the president would openly flout reforms put in place after President Nixon’s Watergate scandal.
“When I look at tweets like that and consider that this intervention in the work of the Department of Justice and this direct attack on our rule of law and on the post-Watergate reforms that tried to build the wall between the White House and the Justice Department, I am struck by the fact that it’s all out in the open,” Schiff said on the podcast “The Axe Files.”
“The fact that is done in the open in a way makes it more insidious because it is normalizing this attack on the independence of the justice system,” he added.
House Speaker Nancy Pelosi (D-Calif.) said Trump’s involvement in Stone’s case — which included impugning the prosecutors, the judge and a juror in the case — was another example of Trump abusing his power, which was the basis for one of the two articles he was impeached on by the House.
“He thinks he’s above the law. He has no respect for the rule of law,” Pelosi told reporters Thursday. “But where are the Republicans to speak out on this blatant violation of the rule of law?”
Democrats’ appeals were unlikely to move their GOP counterparts, who last week acquitted Trump based in part on his defense team’s assertion of an extraordinarily broad view of executive power, one that legal experts say is likely to lower the bar for permissible presidential conduct and give the executive branch more power in the face of congressional oversight.
“What we’ve seen since the impeachment vote last week is simply shocking actions by President Trump and silence, sadly, by many of my colleagues who should be speaking up on behalf of the independence of the Department of Justice and rule of law,” Sen. Christopher Coons (D-Del.) told CNN on Wednesday.
“This is the sort of thing that happens in other countries, not in the United States,” he said.
In a rare public statement, a federal judge on Thursday also pushed back against Trump’s attacks on the judge presiding over Stone’s case, U.S. District Judge Amy Berman Jackson, an Obama appointee.
Chief U.S. District Judge Beryl Howell, also an Obama appointee, said decisions on sentencing follow clear legal guidelines.
“Public criticism or pressure is not a factor,” Howell said.
Trump has long been critical of judges for rulings he disagrees with, including his criticism of a judge of Mexican heritage during the 2016 campaign.
In the courts as well, Trump’s lawyers are fighting Congress and state officials on a number of subpoenas for access to Trump’s financial records, making a broad case for presidential immunity from prosecution or investigations.
For both sides in the debate, questions about the rule of law in the Trump era could come to a head next month when the Supreme Court hears arguments in a landmark fight for Trump’s financial records.
Increasingly, though, Democrats have found themselves with fewer options for checking Trump’s power. The House Judiciary Committee said Wednesday that Barr would testify before the panel but not until the last week of March, well after Stone’s scheduled sentencing.
Democrats have also asked the GOP-led Senate Judiciary Committee to investigate political interference at the DOJ and floated the possibility of tying up appropriations to bring Trump to heel, but those avenues are seen as unlikely to rein in Trump.
“The ability to hold the president accountable has shrunk substantially,” said Barbara McQuade, a law professor at Michigan University. “Trump has fought to avoid criminal charges, convinced senators that he can be impeached only for a criminal violation, rejected congressional oversight in the form of subpoenas and rejected state criminal investigations.
“His efforts to date have shielded him from accountability, allowing him to operate with impunity,” she said.
Some Democratic senators vying for their party’s nomination for president have emphasized on the campaign trail that voters will have the ultimate say.
“The rule of law can’t withstand another four years of a president who thinks that he is above it,” said Sen. Amy Klobuchar (D-Minn.) following her surprisingly strong third-place finish in New Hampshire on Tuesday.