A Form of Resistance Every NeverTrumper Can Love

Anyone who’s wary of Trump should be able to agree on blocking his nominees for U.S. attorney.

Sen. Bob Corker (R-TN), chairman of the Senate Foreign Relations Committee, arrives for the start of a hearing after speaking with reporters about U.S. President Donald Trump on Oct. 24, 2017 in Washington, DC. (Win McNamee/Getty Images)
Sen. Bob Corker (R-TN), chairman of the Senate Foreign Relations Committee, arrives for the start of a hearing after speaking with reporters about U.S. President Donald Trump on Oct. 24, 2017 in Washington, DC. (Win McNamee/Getty Images)

This week, two Republican senators offered powerful rebukes of President Donald Trump’s violation of fundamental norms. Sen. Jeff Flake (R-Ariz.) did so in a remarkable speech notable for its rare moral clarity on the Senate floor. Announcing his retirement, Flake said.

[W]e must stop pretending that the degradation of our politics and the conduct of some in our executive branch are normal. They are not normal. Reckless, outrageous and undignified behavior has become excused and countenanced as telling it like it is when it is actually just reckless, outrageous and undignified. And when such behavior emanates from the top of our government, it is something else. It is dangerous to a democracy.

Flake’s Tennessean colleague Bob Corker gave a more subdued, but also damning, account of Trump’s behavior. Corker said that “the president has great difficulty with the truth — on many issues.” Bemoaning Trump’s legacy as the debasement of the nation, Corker insisted Trump has “proven himself unable to rise to the occasion … I don’t think that that’s possible. He’s obviously not going to rise to the occasion as president.”

In response to both men, a chorus of liberal critics has sounded the same note: Nice words, but so what? Both men, after all, are Republicans who support much of the substantive agenda the administration is pushing. Being willing to tell the truth about the president’s unfitness doesn’t change one’s views of health-care, regulation, or tax reform.

But the question is a fair one. What’s a principled Republican to do?

We have a suggestion on a simple place to start: Corker, Flake, and sympathetic Republicans should join with Democrats to block any and all U.S. attorney nominees whom Trump has interviewed.

Over the weekend, Politico reported the alarming news that Trump has been personally interviewing prospective U.S. attorneys: “President Donald Trump has personally interviewed at least two potential candidates for U.S. attorney positions in New York, according to two sources familiar with the matter — a move that critics say raises questions about whether they can be sufficiently independent from the president.”

Trump also reportedly met with Jessie Liu earlier this year while she was under consideration to become the U.S. attorney for the District of Columbia; Liu has since been confirmed to the role. Before that, Trump also met with former U.S. Attorney for the Southern District of New York Preet Bharara, asking that Bharara remain in office before unceremoniously firing him a few months later along with most other remaining Obama-era holdover U.S. attorneys.

This is, as they say, not normal.

There is broad consensus on this point. Bharara has elaborated at length about his concerns with his own interactions with the president, and he has said the more recent development does not “look good” and “reasonably raises a number of questions” regarding Trump’s motivation. The Washington Post editorial page today called for Congress to stop considering nominees Trump has interviewed. Sen. Richard Blumenthal (D-Conn.), who serves on the Senate Judiciary Committee, condemned Trump’s personal involvement as potentially “coercive and intimidating.” According to Blumenthal:

“What’s most alarming about the president interviewing these particular candidates for U.S. attorney positions is that these chief federal prosecutors are going to decide whether to indict Trump campaign advisors or staff if there’s collusion between the Trump campaign and Russians proven and possibly consider criminal charges against the president himself.”

Blumenthal said he and fellow senators had discussed potentially blocking nominees. Ranking member of the Senate Judiciary Committee Dianne Feinstein (D-Calif.) also issued the following statement:

The U.S. attorney for the Eastern and Southern Districts of New York — like the U.S. attorney for Washington D.C. — would have jurisdiction over many important cases, including those involving President Trump’s personal and family business interests.

There’s no reason for President Trump to be meeting with candidates for these positions, which create the appearance that he may be trying to influence or elicit inappropriate commitments from potential U.S. attorneys. U.S. attorneys must be loyal to the Constitution — not the president.

In pushing back on the criticisms, an unnamed White House official accused Senate Democrats of attempting to “reduce this president’s constitutional powers.” As CNN reported:

“These are individuals that the president nominates and the Senate confirms under Article II of the Constitution,” the official said. “We realize Senate Democrats would like to reduce this president’s constitutional powers, but he and other presidents before him and after may talk to individuals nominated to positions within the executive branch.”

The White House is absolutely correct on this point. There is no law barring the president from meeting with these individuals. But as the Washington Post notes, “the fact that Mr. Trump’s actions are legal does not mean that they are acceptable.” There’s a norm here. And it’s a norm Congress needs to defend.

Prior presidents have been careful not to meet with prospective U.S. attorneys in order to avoid any appearance of impropriety or investigative interference. While the Justice Department is part of the executive branch and the president does select the U.S. attorneys who work for him, White House-Justice Department contacts are carefully limited. The department’s job is to do justice — that is, to evenly enforce the law without respect to politics. It is not the hired gun of the White House — which has its own lawyers — and indeed, playing such a role would be antithetical to the department’s mission.

Preserving the Justice Department’s independence, both in perception and reality, is so critical to the functioning of U.S. law enforcement that an elaborate series of formal procedures and other norms have developed regarding the nature of interactions between the White House and the department. Those norms begin with the selection process for U.S. attorneys themselves. While the president makes a final selection, normally he does not meet with the candidates personally. This process avoids the appearance of any kind of patronage relationship. It also just makes sense, considering there are 93 U.S. attorneys and presidents don’t have time to meet with every lower level nominee.

The Trump administration and the president personally have repeatedly transgressed these norms and written policies on appropriate communications. Former FBI Director James Comey has testified at length about Trump’s effort to wield improper influence over investigations into his associates and to extract assurances of personal loyalty. Importantly, he specifically described Trump’s friendly and incidental contacts with him as efforts to develop a patronage relationship — and they quickly came to involve substantive investigative requests. Bharara too describes inexplicable personal contacts that troubled him — contacts that he believed were inappropriate efforts to cultivate a relationship that would later become demands or requests on investigative matters.

The problem is not hypothetical. Notably, the Wall Street Journal reported this week the former Trump campaign chairman Paul Manafort is facing a money-laundering probe in the Southern District of New York. And that’s not all. The Journal also reports:

“In the Eastern District of New York, based in Brooklyn, federal prosecutors are probing Kushner Cos., the New York property-development business owned by the family of Mr. Kushner, a White House senior adviser, regarding its use of an investment-for-immigration program, The Wall Street Journal has reported. Kushner Cos. has been subpoenaed in that investigation, which involves the federal visa program known as EB-5.”

The inappropriate contacts do not end with prosecutors. During his short tenure, former White House Communications Director Anthony Scaramucci claimed he had personally contacted the FBI, in apparent violation of guidelines, regarding documents he claimed were leaked. And the president’s own public comments and those of his press secretary have raised concerns about attempts to influence ongoing or possible future investigations.

In other words, as noted by senators and former officials critical of Trump’s conduct with respect to U.S. attorneys, there is a context to Trump’s actions that heightens the risk inherent in direct presidential contacts with law enforcement. Trump has reportedly met with candidates for U.S. attorney in, coincidentally or not, the precise jurisdictions in which civil and criminal matters related to the Trump organization or the Trump family members and their associates are already ongoing. In other words, Trump is meeting with the U.S. attorneys who are most likely to matter for his own future interests.

In short, Trump’s conduct is an especially pernicious assault of the norms that create an independent Department of Justice. These norms are essential to our government, and they require an active defense. If they are not defended, they will atrophy. This is precisely what Flake was talking about when said the other day that Congress needs to assert itself in defense of norms of decent government.

And it is up to Congress to defend these norms — and a combination of Democrats and the Republicans should be able to draw a sharp line in the sand.

Because while the president is right that he has the power to interview nominees, he isn’t the only one with relevant and undisputed constitutional powers. Congress has a few too — including the power to vote down nominees to positions like United States attorney.

The Senate Judiciary Committee should adopt a clear red line: It will not forward for consideration the confirmation of any future U.S. attorney candidate who has personally met with the president in the course of being considered for nomination. It should announce this policy publicly, as an entire committee, and on a bipartisan basis.

It won’t, of course, because its members are not all as courageous as Flake and Corker have been. But even without a unified committee position, individual Republican senators committed to this norm should be willing to join forces with Democrats both in the committee and on the floor to defeat nominees who fail this test.

As Flake put it the other day, “we must be unafraid to stand up and speak out as if our country depends on it — because it does.” Flake says he plans “to spend the remaining 14 months of my Senate term doing just that.” Defending the independence of U.S. attorneys would be a great place to start.

Susan Hennessey is managing editor of Lawfare. Twitter: @susan_hennessey
Benjamin Wittes is editor in chief of Lawfare. Twitter: @benjaminwittes

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