The estimable Jeffrey Toobin of the New Yorker and CNN covers the President’s interaction with the Mueller investigation. He now boldly argues that Donald Trump’s latest and extraordinary trespass against the Justice Department – excoriating, by tweet, Attorney General Jeff Sessions for not squashing the prosecutions of two (early supporter, safe seat) Republican congressmen for serious crimes having nothing whatsoever to do with Russiagate or Obstructiongate actually is an impeachable offense.
Whether Toobin is right or wrong, Trump has (unsurprisingly) rushed in where wise men fear to tread, thinking nothing of what he has done. If it’s not clear to everyone, he has basically told the American people that the true job of the Justice Department is to protect the President and his friends – to look the other way or even outright kill prosecutions no matter how serious the crimes may be, as long as the offenders are his supporters, or else.
In doing so, he continues to intimidate and bully – this time law enforcement instead of Congress – to effectuate his agenda. And, in less than 280 characters he has turned the principles of the American system of justice on their head. After all, Lady Justice – since the 16th century most often depicted wearing a blindfold – is supposed to be blind and impartial, and meted out without regard to wealth, power, or other status (most especially not the status as a supporter of the president or other powerful politician or citizen).
Prosecutors typically don’t warrant or receive sympathy — whether you like the defendant or not, prosecutors are people you typically love to hate. They’re usually displayed as heartless automatons bent on getting a conviction at all costs. And the current Attorney General, despite his isolated “good deed” in having recused himself from any role in the Mueller investigation – presents in just that light.
Indeed, he is actually carrying out the President’s stated mandate demonstrating just how willing he is, as Attorney General, to treat the underclass. But although he, as America’s chief law enforcement officer, could theoretically have killed the prosecutions of Congressmen Chris Collins and Duncan Hunter for insider trading and campaign fund offenses, respectively, we suspect that the thought never crossed his mind.
Now, for sure, Collins and Hunter are entitled to a presumption of innocence, and they certainly get that here. But just imagine a nation where the president could sit in the oval office, after conferring with his supplicants who supported him in his candidacy and are threatened with prosecution (having nothing to do with his campaign), as here, and thereafter literally call his Attorney General, stealthily exercising a veto over the prosecutions.
It might be one thing where the potential prosecution has something to do with national security, and the Attorney General simply doesn’t know how such a prosecution might undermine America’s safety. But Collins and Hunter – what do they have to do with that? Nothing! Collins is accused of insider trading. Hunter is accused of improperly spending more than $250,000 in campaign funds on personal expenses and filing false campaign finance reports to cover up the misspending, conduct which he admits but blames on his wife, although assuredly he reaped the benefits.
Trump’s tweet is radically direct, with no pretense whatsoever. Basically, he says “They’re my friends and supporters, fellow Republicans, and if they were reelected, which was almost assured before the indictments, it could have helped avoid my getting impeached in 2019. So, look what you, Sessions, have done to me (and the Republican Party). You’ve allowed grand juries, sitting wherever, to jeopardize those favorable votes for me (and my agenda).” Put Sessions to the side, let’s not forget that these two prosecutions were brought by United States attorneys actually put in place by the Trump Administration. Apparently, they didn’t get the memo!
Now, of course, Trump didn’t “direct” Sessions to kill the indictments or insist that Justice Department attorneys dismiss them – he simply blamed Session for not having headed them off at the pass (“Good job, Jeff”). So, technically speaking, we suspect, Trump could wiggle out of an impeachment charge, saying, “I was just expressing aloud my personal views.
The same views Bill Clinton probably had when Janet Reno could have killed prosecutions during his fight with Ken Starr. So, that’s what’s different about me, I actually say what I’m thinking – the public deserves to know it.”
But, think about it. The President has now communicated to 93 United States attorneys around the country that their jobs — maybe judgeships to follow — will be more secure if they spend their time on investigations having nothing to do with the President’s supporters, and of course, there’s plenty for them to do, and opt not to pursue investigations of those that do support him.
We’d like to believe that no United States attorney will be cowed by that kind of thinking; but the fact that the most powerful figure in America is willing to put that subliminal thought in the mind of his appointees is disturbing in the extreme. And it is remarkable frankly that legislators in his party – particularly Republican senators who traditionally recommend United States attorney candidates to the President – haven’t publicly quarreled with the issue at all. Maybe to do so would threaten to stifle their state’s pork barrel?
Joel Cohen, a former prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan LLP and is the author of Blindfolds Off: Judges on How They Decide.
Gerald B. Lefcourt practices criminal defense law in New York City. He is a past president of the National Association of Criminal Lawyers; a founder of the New York State Association of Criminal Defense Lawyers; and founder and past president of the New York Criminal Bar Association.
[Image via Saul Loeb, AFP/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
