The Washington PostDemocracy Dies in Darkness

Opinion The unraveling of the rule of law under Trump is picking up speed

Attorney General William P. Barr in the East Room at the White House in Washington last year. (Bill O'Leary/The Washington Post)

After the “Saturday Night Massacre” in 1973, Archibald Cox, the special prosecutor who had just been fired by President Richard M. Nixon, wondered “whether ours shall continue to be a government of laws and not of men." That question is now more urgent and unresolved than ever as President Trump mounts a destabilizing, dangerous assault on the checks and balances of our constitutional system.

A series of judicial decisions in the past week reminds us that the rule of law still exists in the United States — that we do not, as yet, live in Turkey, Hungary or Russia, former democracies ruled by three of Trump’s favorite autocrats. The Supreme Court ruled against the administration by protecting gay and transgender employees from workplace discrimination and by protecting “dreamers" — young people brought to the United States without documentation — from deportation for the time being. A few days later, a federal judge in Washington ruled against Trump’s attempts to block the publication of former national security adviser John Bolton’s scathing memoir.

These are significant but tenuous victories. Note that the dreamers case was a 5-to-4 decision and that the court did not stop Trump outright from deporting some 700,000 Americans; it merely demanded that he provide a more compelling rationale to do so. If 87-year-old Justice Ruth Bader Ginsburg steps down while Trump is in office, her replacement will most likely vote with the most conservative members of the present court to give the president carte blanche to act as arbitrarily as he likes. (The most conservative justices occasionally show some ideological independence — Neil M. Gorsuch wrote the majority opinion in the LGBTQ rights case — but they invariably defer to executive authority when it is challenged.)

While still hemmed in by the federal judiciary, Trump is in the midst of purging the executive branch of anyone who refuses to put loyalty to him above loyalty to the country.

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On Friday night, Attorney General William P. Barr abruptly announced the resignation of Geoffrey S. Berman, the U.S. attorney for the Southern District of New York, who had been overseeing investigations of Trump’s inner circle. No reason was given other than a desire to replace Berman with Jay Clayton, a golf buddy of Trump’s who heads the Securities and Exchange Commission but has no prosecutorial experience. Berman refused to go quietly into the night, protesting that he was being fired and refusing to step down, relenting only after Barr said he would be replaced by Berman’s own deputy.

Lawmakers on June 21 reacted to Attorney General William P. Barr's firing of Geoffrey Berman as U.S. attorney for the Southern District of New York. (Video: The Washington Post)

Barr insisted that if the administration attempted to interfere with ongoing cases, prosecutors could lodge their complaints with the Justice Department inspector general. Oh really? This merely served as a reminder that Trump has been busy purging inspectors general from across the government — usually on Friday nights.

We don’t know why Barr ousted Berman, but it is impossible to give him the benefit of the doubt given how he eager he has been to serve as Trump’s henchman. Barr distorted the findings of special counsel Robert S. Mueller III’s investigation; overruled line prosecutors to recommend a more lenient sentence for Trump crony Roger Stone; tried to dismiss the charges to which Trump’s former national security adviser Michael Flynn had already pleaded guilty; and has appointed investigators to investigate the investigators who probed the connections between the Trump campaign and Russia. A retired federal judge concluded that the attempted dismissal of charges against Flynn was “clear evidence of gross prosecutorial abuse,” and more than 1,900 Justice Department alumni have called for Barr to resign.

But, of course, Barr isn’t going anywhere. It’s Trump appointees who show a scintilla of independence who are leaving the government.

Michael Pack, a colleague of far-right ideologue Stephen K. Bannon and the new chief executive of the U.S. Agency for Global Media, just fired the widely respected heads of four agencies that produce news and information for global audiences. Two of those dismissed — Jamie Fly, who headed Radio Free Europe/Radio Liberty, and Alberto M. Fernandez, who headed Middle East Broadcasting Networks — are staunch conservatives; Fly was the former foreign policy adviser to Sen. Marco Rubio (R-Fla.). But it doesn’t matter, any more than it matters that Berman, the fired federal prosecutor in New York, was a Trump donor in 2016. Being a normal conservative — rather than a tin-hat-wearing MAGA conspiracy monger — is apparently a firing offense in this administration.

And where is the third branch of government while this assault on democratic norms is accelerating? Congressional Republicans refused to hold Trump to account during the impeachment. Now they either wring their hands helplessly or pretend not to notice what is going on. Discouraged House Democrats are not even going to impeach Barr — a fate that he richly deserves — because the complicit Senate Republicans would never convict.

Bolton notes in his memoir that the failed impeachment has only emboldened Trump and that the last remaining “guardrail” is the November election. He warns that a second-term Trump could be "far less constrained by politics than he was in his first term.” That is a terrifying thought given how little restraint Trump is now displaying in his assault on the rule of law and the norms of democratic governance.

Read more:

The Post’s View: How can anyone trust Bill Barr’s Justice Department now?

James Comey: Geoffrey Berman upheld the finest tradition of the SDNY office

Stuart M. Gerson: In the crisis at Justice, impartial rule of law is on the line

Jennifer Rubin: A Friday night massacre that backfired