The degradation of the independent law enforcement function itself

Benjamin Wittes has thoughts on the effects of the current situation on people at the Department of Justice and on the rest of us.

The trouble is that remaining in office does not merely demean the individual dignity of the attorney general and the deputy attorney general when the President whines about the attorney general’s compliance with Justice Department recusal rules; when he attacks the attorney general for not investigating a political opponent; when he openly suggests that the Justice Department’s leadership should act in his personal interests; or when he suggests that the deputy attorney general is biased against him as a result of previous service as U.S. attorney in a Democratic-majority city. These are also degradations of the institutional offices these men hold. And continuing to hold those offices in silence when the president says these things them permits that degradation to go unchallenged—both before the workforce and before the public.

To the workforce, this sort of rope-a-doping by the department’s leadership might provide a short-term protection against political interference in an investigation, and I don’t diminish the importance of that protection. Rosenstein and Sessions (who is recused, in any event) may by tolerating belittling by the President to allow their investigators and prosecutors to do their work unmolested. But the long-term cost is the corrosion of the norm not merely that investigators and prosecutors are ultimately protected from White House interference on investigative matters, but that presidential attempts at such interference are themselves unacceptable. To allow the Justice Department and FBI workforces to witness on an ongoing basis the president hectoring, threatening to fire, and belittling the attorney general and deputy attorney general is to allow them to witness also the degradation of the independent law enforcement function itself. For the departmental leadership to tolerate the repeated statements by the president of his expectation that their function is nothing more elevated than that of agents of his political power and protection is, at some level, to accede to the acceptability of those statements. Even if in practice, in the short term, law enforcement functions independently as a result, accepting this characterization of its function has to socialize over time the way people at the relevant agencies understand the jobs they are doing. It will drive honest people away, prevent good people from coming on board, and over time it will influence the way many people think about their work.

Perhaps even more important than the message that leadership’s rope-a-doping sends to law enforcement officers is the message it sends to the public about law enforcement. For the public to see this kind of presidential behavior towards the attorney general and the deputy attorney general, for the public to see both men tolerate it, and for the public to see there be no consequences for it will, again over time, make it acceptable behavior. That’s the way political norms change—the way old norms get discarded and the way new ones develop. If it’s okay for the president to criticize the attorney general for recusing when it’s not convenient for his interests for the attorney general to do so, then why is not okay for him to demand as a condition of appointment that the attorney general promise not to recuse? And why is it not okay for a prospective attorney general to comply with such a demand? If it’s okay for the President to tweet that his political opponent should be investigated, why is it not okay for the attorney general to investigate those the President says should be criminally investigated? Why is it not okay for the President to order up such an investigation?

That’s all the more true since a lot of people are probably paying more attention to the DoJ right now than they ever have before. We’re drinking in what’s being played out before us day after day; how can we help but absorb the messages being sent?

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