We no longer have an independent Justice Department

We no longer have an independent Justice Department

By Josh Marshall

Late last week, right-wing media outed the FBI informant who in 2016 talked to Trump campaign officials as part of the bureau’s efforts to learn about the campaign’s ties with Russia. That’s likely to hurt the bureau’s ability to recruit sources, especially those with access to information about the right.

But if anything, the fallout from the news has been even more damaging.

On Sunday, President Trump tweeted that he planned to ask the Justice Department to investigate whether the FBI “infiltrated or surveilled” his campaign. His goal, plainly, is to discredit the Mueller investigation into Russian meddling. Then later that day, Rod Rosenstein, the DOJ number two who’s overseeing the Mueller probe, said he’d ask the department’s inspector general to add the issue to his ongoing probe of the FBI’s application for a FISA warrant to surveil Carter Page. (It’s worth noting: The IG is independent from DOJ leadership, so it doesn’t have to comply with Rosenstein’s recommendation.)

In other words: The president demanded that the Justice Department launch an investigation that he clearly hopes will benefit him politically. And the Justice Department, within hours, said it agreed.

DOJ essentially taking orders from the president on this represents a level of political interference in the U.S. justice system that may go further even than anything else we’ve seen under Trump. It’s true that DOJ’s announcement back in March that it would probe the FISA issue came after weeks of agitation by Trump and his allies in Congress. But even that sequence of events felt less direct in terms of cause and effect than what played out on Sunday.

This isn’t to criticize Rosenstein. He may well have concluded that, given a set of bad options, the least bad was to hand the issue off to the IG, with the hope of defusing it. Trump allies are already calling it a “Potemkin investigation.”

But it’s worth recognizing what’s happened. Until Trump, it was basically thought that the appropriate response from DOJ to a demand by the president that it launch an investigation, especially on an issue of such political sensitivity, was to say: We’ll consider that on the merits like any other matter, but the president doesn’t dictate the department’s priorities. Of course that doesn’t mean that, in reality, DOJ has never been susceptible to political pressure in the past. But at least as a matter of publicly expressed policy, its position was clear.

We no longer have a Justice Department that feels able to say that. That’s a big step away from the rule of law.