Jack Goldsmith, former head of the Office of Legal Counsel in the Justice Department, writes about President Trump’s tweets:
They violate norms of law-enforcement independence from presidential influence. Their proximate aim is to discredit the Justice Department and FBI, probably in order to delegitimize it as the investigation of Robert Mueller gets ever closer to the president. And they appear to be part of an effort to weaken public confidence in American institutions more generally—not just DOJ, but also the “so-called” courts, the “fake news” media, the supposedly lying, incompetent intelligence community, and others.
This is all depressing enough. But another sharp cost of Trump’s caustic tweets has been largely neglected: The slow destruction of the morale of federal government employees, especially executive branch employees.
When we talk about law and order, it is easy to lose sight of the people behind that magisterial phrase — the judges, local police, FBI, prosecutors, etc. While Trump talks a good game, his combination of bravado, ignorance and contempt for a legal system that restrains even presidents leads him to defame them (and the entire intelligence community) and to induce them to act in unprofessional ways (e.g. praising and pardoning former sheriff Joe Arpaio for criminal contempt of court, encouraging police to rough up suspects).
In the case of the FBI, the assault is direct (a bureau in “tatters,” he falsely claims) and unprecedented. It’s also made worse by the spinelessness of Attorney General Jeff Sessions and Deputy Attorney General Rod J. Rosenstein, who have not “publicly challenged the president in the face of his repeated attacks on the Justice Department and its investigative decisions. (Indeed, Rosenstein laughably argued that Trump has ‘respect for the rule of law.’)” Goldsmith points out that Trump’s handpicked FBI director, Christopher Wray, hasn’t said boo to criticize the president.
When they do not speak out against the president’s attacks on their institutions and the rule of law, they signal to their employees and the world that they are indefeasibly beholden to the president, or that they do not care. The failure to protect and defend the department engenders anger, suffering, and resentment by the men and women they are charged with leading. It also contributes to a sense of delegitimization within the department, and thus stokes the morale crisis. These are not consequences that any leader should ever tolerate.
Trump’s damage to the rule of law, therefore, is not just seen in his own defiance of legal restraint (the president cannot obstruct justice, his lawyer claims), his contempt for the First Amendment, his bigotry (from the Muslim ban to trying to throw out transgender people serving honorably in the military), his selection of utterly unqualified judges and his own conflicts of interest and self-enrichment. It is evidenced in the signals he sends to law enforcement at every level, namely that the whims and preferences of those in power take precedence over the Constitution, legal institutions and legal norms.
The “But Gorsuch!” crowd has enabled an erosion of the rule of law that it would not tolerate if presided over by a Democratic president. Justice Neil Gorsuch’s vote on the Supreme Court will be counterbalanced in future years by nominees of other presidents, but there is a legitimate fear that the lawlessness Trump promotes will undermine our system of justice permanently. There can be no greater violation of his oath of office.