Quinta Jurecic is managing editor of the Lawfare blog.
Is the president succeeding in his war against the Russia investigation? At least twice, Donald Trump has made up his mind to fire special counsel Robert S. Mueller III — and at least twice he has backed down. Deputy Attorney General Rod J. Rosenstein, who oversees Mueller, still has his job. The special counsel’s office continues its work. And yet, more and more, Trump is tightening his grip around the neck of the Justice Department.
The latest skirmish between the president and Justice Department leadership involved a tweeted presidential “demand” for a probe into whether “the FBI/DOJ infiltrated” his campaign and a departmental briefing for congressional leaders that, alarmingly, also included the chief White House lawyer handling the Russia investigation for Trump. The president’s actions crossed many of the lines drawn after Watergate to prevent White House meddling in law enforcement and ensure the role of Congress as a purveyor of good-faith oversight, not an ally in the president’s abuses. But the country avoided the constitutional showdown that could have resulted if Trump had insisted on forcing the FBI to open a criminal investigation.
The episode followed a familiar pattern. The president, seizing on a conspiracy theory percolating among his political allies, lashed out at his battered Justice Department. The Justice Department dodged the blow. We’ve seen this dynamic play out again and again over the course of the past year. In other words, it was nothing out of the ordinary for a week in the Trump presidency: a spasm that ultimately resolved into nothing more than a resigned “Well, there he goes again.”
There’s a good argument — perhaps even a correct one — that the initial panic about a brewing constitutional crisis was overblown. What Rosenstein surrendered was relatively minor compared with what he could have been forced to give up, another instance of the pattern in which Trump and his allies demand a mile and the deputy attorney general gives an inch.
But inches add up. Another way of understanding recent events is this: The president won a major victory in his effort to seize control of the Russia investigation — and everyone breathed a sigh of relief.
Make no mistake, the president is growing bolder. Again and again over the past year, Trump has sidled right up to the line of demanding control over the Justice Department; indeed, he has told us, repeatedly, that this is his plan. This time, instead of wheedling or hinting at his desire that the department shutter the Mueller investigation and prosecute his political enemies, the president issued a direct order for the department to “look into” alleged spying on his campaign.
And he did so in the most public way possible: on Twitter. Compare this with James B. Comey’s description of Trump’s effort to coax him into dropping the FBI investigation into Michael Flynn. In that case, the president hinted that he hoped Comey could “see [his] way clear to letting this go” and waited for a private conversation to do so — a sign, Comey wrote in his memoir, that Trump understood the sweet-talking to be “inappropriate.” More than a year later, the president has dropped any pretense of shame or delicacy. He no longer bothers to soften his requests with “I hope” or wait until the Oval Office door is closed to make demands.
Trump is not a brave man. He complains endlessly about Attorney General Jeff Sessions and the Mueller investigation on Twitter, but he has never brought himself to the point of actually dismissing Sessions or shutting down the investigation. What he has done instead is gradually chip away at the independence of the Justice Department, so that each new incursion appears not particularly radical or troubling. And when he really does draw blood, as he did last week, the country responds with relief that the damage was only a scratch instead of a killing blow.
For Trump, this may be a conscious strategy, or it may be the result of instinct and cowardice. For Justice Department leadership, it’s a losing game, a choice of death by a thousand cuts or all at once. For the public, the result is confusion. If Washington had seen a real standoff between Trump and Justice Department leadership, the urgency of the moment would have been easy to comprehend. Americans have a template with which to understand such a crisis; the comparison to the Saturday Night Massacre draws itself.
Yet the danger presented by the gradual erosion of rule-of-law norms is much harder to communicate with that same intensity — partially because the danger is more gradual but also because the harm is more complex. Most people have no reason to know about the network of post-Watergate laws and standards designed to prevent abuses of power, through which Trump’s actions this past week tore a hole.
We might blame this on apathy. We might blame this on a failure of civic education. And we might ask what it means that the threat posed by the president to the rule of law may be too abstract and complex to be felt deeply — perhaps until Trump drags us into truly uncharted territory.