On Thursday night, at least eleven former U.S. officials filed an amicus brief in the lawsuit between AT&T and the Department of Justice. The DOJ in November of 2017 sued to block the telecom giant’s $85.4 billion bid to take over Time Warner, the parent company of CNN. The trial is set to begin March 19.
The effort includes Preet Bharara, the former U.S. Attorney for the Southern District of New York from 2009 to 2017 who was fired in the early months of the Trump administration. John Dean, a onetime White House counsel to former President Richard Nixon who became a prominent figure in the Watergate scandal, is also part of the brief.
The brief is a clever bit of lawyering, taking no position on the underlying antitrust measure. Its purpose is to highlight the way in which President Trump has politicized and personalized the administration of justice as no president ever has before. The brief states that, because of Trump’s public attacks on CNN, “this case is being pursued under a cloud, with a perception—at least by some— that DOJ brought this case at the behest of President Trump in order to punish CNN for what he viewed as unfavorable coverage of his administration.”
These lawyers ask the court in this particular case to allow discovery on the issue of presidential interference and then, if appropriate, to dismiss the case the government has filed based on “selective enforcement,” “unclean hands” or even the First Amendment. If Trump’s antitrust lawyers are pursuing a case in retaliation for CNN’s free speech rights, the court must intervene.
Protect Democracy, a nonprofit and nonpartisan group that has sought to challenge Trump on a variety of fronts to enforce historical and constitutional limits on the executive branch, on Friday also released a white paper on the topic of Trump’s inappropriate contacts with the Justice Department.
“Administrations led by both parties have maintained policies limiting contacts between the White House and the Justice Department (“DOJ”) on law-enforcement matters involving specific parties,” it explains. “These policies reflect constitutional principles that limit the situations in which the White House may interfere in law-enforcement matters involving specific parties.” Trump has consistently violated these policies — asking for special treatment of Michael Flynn, seeking prosecution of Hillary Clinton, setting “red lines” for the Russia investigation, etc.
Trump has a distorted view of his own power, to put it mildly:
President Trump claimed an “absolute right to do what I want to do with the Justice Department.” Article II of the Constitution places the President at the head of the Executive Branch, but it does not cloak the President with unlimited authority to intervene in how the law is enforced against specific parties. Article II, Section 3 states, among other things, that the President “shall take Care that the Laws be faithfully executed.” Nothing in that Clause gives the President an “absolute right” to control specific enforcement matters at DOJ.
When the president says he can do anything he wants with the DOJ, he’s talking like an absolute monarch, not the head of the executive branch in a constitutional system of government. (“Not even King George III had the ability to enforce the law however he chose. It is nearly impossible to imagine that the Founding Fathers would have chosen to vest the presidency with even greater powers than the English King who drove them to rebellion.”)
There are four key ways in which this can play out, the white paper tells us.
First, in anticipating the president’s legal defense to a potential charge of obstruction of justice, the white paper’s authors want to make clear that the president “cannot absolve him of the consequences of his obstructing or otherwise interfering with law-enforcement matters—whether in court or in congressional impeachment proceedings. The first specific application of this paper, therefore, is to negate this defense by showing that the Constitution itself limits the President’s ability to intervene in law-enforcement matters involving specific parties—especially for self-interested reasons.”
In short, it is impermissible for the president to, say, instruct the Justice Department to go easy on a former adviser for a corrupt reason (protecting himself in the Russia probe). If he does so, this can in fact be the basis of an obstruction charge under the relevant statute (18 U.S.C. § 1501 et seq.). “Therefore, courts should be absolutely clear that the President can no more legally fire a prosecutor on the basis of presidential self-interest in a specific-enforcement matter than the President can legally fire a prosecutor on the basis of a presidential bribe.”
A second context in which improper Justice Department interference may arise is in specific cases, wherein the president may endanger legitimate civil and criminal actions brought by the federal government. As in the AT&T case, litigants can challenge actions brought by the government if they believe they have been politically tainted (“there is ample precedent for judicial enforcement of other constitutional principles—including due process and equal protection— implicated by improper White House interference in party-specific enforcement matters”). The threat of White House interference may be revealed by litigants in specific cases and may work to deter meddling and to encourage DOJ lawyers to resist political direction on individual matters.
Third, the paper states that Congress has the right — the responsibility even — to enshrine in law “the norms that long governed the White House-Justice Department relationship.” It recommends that Congress “consider legislation to regulate White House contacts with the Justice Department to ensure compliance with the constitutional principles . . . . That legislation could include clear prohibitions to ensure that there is no doubt about the proper lines; notice-and-reporting requirements so that Congress is aware of violations; and rights for private litigants to challenge improper White House interference.” There is some precedent for this in legislation passed after Watergate that bars executive-branch employees from acting to “request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.”
And finally, the authors want to deter Trump from forcing the Justice Department to pursue his political enemies. (“Lock her up.”) They explain, “The President and his lawyers should know that doing so would violate the President’s constitutional duties. . . . DOJ officials, including the Inspector General and Office of Professional Responsibility, and Congressional oversight committees, should act accordingly.”
In other words, the lawyers have an obligation not to pursue spurious cases just because the president demands they do so. Unfortunately, in the current context, Republicans in Congress have too often piled on — encouraging the president and the Justice Department to investigate and take legal action against Hillary Clinton. (Any lawmaker who does this should be voted out forthwith.)
In sum, Trump cannot treat the DOJ like his personal lawyer Michael Cohen, who gets paid to clean up Trump’s messes and protect him from political fallout. If the president tries to do so, lawyers have a constitutional and professional obligation to halt the conduct. If we ever get a responsible Congress, it can pass laws to insulate DOJ from untoward executive meddling. The other alternative, of course, would be to remove a president who fails to uphold his oath of office.