How many times must we have this reaction to the latest horror story from the Trump administration: We are surprised, but not shocked, by new revelations.
This has become the norm. We live in an era where we think nothing can really stun us anymore. We’ve seen migrant children ripped from their parents’ arms at the border with no effort made to collect information necessary to reunite them. We’ve seen a president withhold aid from a foreign adversary in an effort to achieve political advantage against an opponent in his reelection bid. We’ve watched a president ignore the threat of a pandemic until it crashed over us with a tidal wave of death, and seen him threaten on Twitter to use violence against people protesting against police violence.
On Wednesday, a federal prosecutor, a whistleblower still employed by the Justice Department, testified to the House Judiciary Committee that he resigned from a case because of political pressure applied to the conduct of a prosecution. Aaron Zelinsky, an assistant U.S. Attorney in Maryland, said in his opening statement, “What I heard — repeatedly — was that Roger Stone was being treated differently from any other defendant because of his relationship to the president.”
The Principles of Federal Prosecution, the Bible for every assistant U.S. Attorney in the country, explicitly forbid this kind of consideration. Authoritarian regimes might do this, but in America, defendants don’t get preferential treatment because they know the prosecutor or because they know the president. Zelinsky says political pressure was imposed to seek a lighter sentence for Stone, Trump’s longtime confidant, and that prosecutors were asked to obscure the correct sentencing guidelines calculation and favorably misrepresent Stone’s conduct. He testified that he had been told the acting U.S. Attorney for the District of Columbia, Timothy Shea, was afraid of the president and that he himself was told he might be fired if he didn’t go along.
The Principles of Prosecution discuss “Impermissible Considerations,” and state explicitly: “In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be influenced by: The person’s race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs.”
But we seem to live under a regime where the rules no longer apply to the president and those in his orbit. Trump has even told us this, declaring last summer, “I have an Article II, where I have to the right to do whatever I want as president.” Yesterday, Zelinsky testified before Congress — along with Donald Ayer, former deputy attorney general under George W. Bush and John Elias, a senior career official currently serving in the Justice Department’s antitrust division — to insist that the rules should still apply.
We are living in a troubled time where people are faced with a daily struggle to protect their families. The words of a federal prosecutor may seem to involve a remote threat, but our most fundamental rights are at stake here. The decay at the Department of Justice impacts all of us.
DOJ has always prosecuted, as we say, without fear or favor. But now, prosecutions favor the president’s friends and anyone opposed to him must live in fear of what he might direct his Justice Department to do.
Ayer testified that Barr “poses the greatest threat in my lifetime to our rule of law.” He said that this administration has engaged in a “systematic effort to undo the checks that were put in place in Watergate.”
During the Watergate scandal, we saw members of Congress put country over party to investigate President Richard Nixon and apply public pressure that resulted in his resignation. Republicans and Democrats joined to take action again in 2007 following the firing of nine U.S. Attorneys for politically motivated reasons during the George W. Bush administration, leading to the resignation of Attorney General Alberto Gonzales.
But today, in the face of direct testimony from an experienced federal prosecutor that the president of the United States personally influenced decision-making in a prosecution, we hear crickets from the Republican side of the aisle. Imagine the outcry we would hear if former Attorney General Eric Holder had directed lenient treatment in the prosecution of one of Barack Obama’s oldest and dearest friends. Or the outrage that would ensue if another former attorney general, Michael Mukasey, who testified on Wednesday as a witness for Republicans, had done so for George W. Bush. No one can imagine it because it wouldn’t have happened — back then, too many internal barriers existed in the form of a U.S. Attorney who would have refused and supervisors who would have resigned. Something has gone badly wrong at DOJ when it comes down to a line prosecutor, who was threatened with the loss of his job if he didn’t go along, now risking his career to come before Congress and tell the truth. We should all be paying attention.
There is no future in this Department of Justice, the one that is led by Bill Barr. He has destroyed the public’s ability to have faith in the integrity of prosecutions. Typically, conversations about ethical conduct involving DOJ employees are about avoiding the appearance of impropriety, not about actual impropriety. DOJ’s ethics rules caution prosecutors to take great concern with appearances because they can affect the public’s confidence in the institution. But now, in the starkest terms possible, we are talking about actual impropriety at DOJ. We are talking about a president who uses DOJ as a political tool, an attorney general who enables it, and a department that tolerates it.
We like to think others will come forward to talk about what they have seen and what they know. But even if these whistleblowers stand alone, the rest of the country must see this for what it is, a violation of the principle that no one is above the law. Although many suggest the only option we have is to wait until November, this crisis is so significant that despite the political obstacles, it is time to bring this lawless administration to account. With sufficient public pressure, Barr could be forced to resign, just as Gonzales was.
Congress must continue to pursue this matter. It could start by subpoenaing the supervisors that Zelinsky named during his testimony and it could continue when Barr testifies in July. As Zelinsky noted in his opening statement, the deliberative process privilege, which the White House has long used to shield the president’s allies from testifying, does not apply if it is being used to cover up government misconduct or if the government selectively releases information in a misleading fashion. The House Judiciary Committee should not permit Barr to skirt its subpoena, and should ask him pointed questions about his conduct in the Stone sentencing, the Michael Flynn dismissal, and the teargassing of protesters outside the White House.
No other federal prosecutor could do what Barr has done and get away with it. We are mindful of the political calculations that must underlie proceedings on the Hill, but with misconduct that is so egregious and a violation of the attorney general’s oath that is so blatant, House Democrats have to do the right thing and let the cards fall where they may.