As with many norms of American politics and government, this one has suffered an even greater beating under the Trump administration of late.
In a pair of Fox News interviews airing Monday night, both President Trump and acting homeland security secretary Chad Wolf claimed to confirm investigations on some massively provocative topics related to unrest in the ongoing racial-justice demonstrations.
Trump offered a particularly bizarre and unsubstantiated claim that the Justice Department is investigating some kind of plane full of unsavory characters allegedly flown in to foment unrest during the Republican National Convention.
“We had somebody get on a plane from a certain city this weekend,” Trump said, “and in the plane, it was almost completely loaded with thugs wearing these dark uniforms — black uniforms with gear and this and that.”
When pressed on the remarkable claim by Fox host Laura Ingraham, Trump clammed up but assured her it was being probed, apparently by the Justice Department, since that’s where such investigations would be conducted and where Trump would logically be aware of them. “I’ll tell you sometime, but it’s under investigation right now,” he said.
Trump elaborated on the claim Tuesday, citing an unnamed witness as he asserted that there was “an entire plane filled up with the looters, the anarchists, rioters, people looking for trouble.”
While that remarkable claim has gotten the most attention, Trump often throws such things at the wall, and they seldom stick. (NBC News has reported that Trump’s claim is strikingly similar to Internet rumors from months before the GOP convention.
But it was another claim on the same airwaves Monday night — by Wolf — that might be the more important one.
In an interview with Fox News’s Tucker Carlson, Wolf on two occasions appeared to confirm that the Justice Department is looking into organizers of the Black Lives Matter movement and antifa. Carlson asked Wolf whether he was getting the assistance he wanted from the Justice Department and asked, “Why haven’t we seen the leaders of antifa and BLM arrested and charged for conspiracy under, say, RICO, like the heads of the mafia families were?”
Wolf said it was under investigation and that he was in contact with Attorney General William P. Barr about it almost weekly.
“Well, it’s something I’ve talked to the AG personally about, and I know that they are working on it,” Wolf said, adding: “The Department of Justice is also targeting and investigating the head of these organizations, the individuals that are paying for these individuals to move across the country.”
He later said Barr “has the lead, and all of those investigations are certainly moving as quickly as possible.”
Justice Department spokeswoman Kerri Kupec issued a statement on a separate comment Wolf made in which he referenced “criminal protesters,” clarifying that the focus was not on law-abiding demonstrators. The department has not responded to a request for comment, though, on Wolf’s claim that DOJ is looking into the heads of organizations such as BLM and antifa.
Justice Department policy generally prohibits such disclosures. The department’s manual states that “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.” There are a couple of exceptions, both when “the community needs to be reassured that the appropriate law enforcement agency is investigating a matter, or where release of information is necessary to protect the public safety.” The reason is that merely disclosing investigations can unfairly tarnish people who have not been charged with crimes.
This is a broad standard that is open to interpretation. Comey thought he had compelling reasons to detail the Clinton investigation, and he also disclosed to Congress in March 2017 that the FBI was looking into contacts between the Trump campaign and Russia. Democrats have rued the former decision — particularly Comey’s disclosure of newly investigated Clinton emails a week and a half before the 2016 election. At least in those cases, though, Comey had difficult calls to make about disclosing information that was of significant public interest, given that these were the prospective president and then the actual president. (I wrote at the time about Comey’s impossible choice on the Clinton matter.)
In the case of disclosing an alleged investigation about the “heads” of BLM and antifa, it’s less clear what the immediate public interest is in knowing this information. Perhaps the argument would be that people are worried about whether the Justice Department is addressing the roots of unrest in certain communities, but Wolf was commenting on pretty specific targets of those investigations.
The problem with this is that, without providing any real substantiation, it feeds into Trump’s conspiratorial comments about alleged ne’er-do-wells supposedly pulling the strings on these scenes of unrest. It creates suspicion about a Black Lives Matter movement that Trump has increasingly sought to cast as a boogeyman in the 2020 election.
And the DOJ has also long had another policy when it comes specifically to taking actions that could affect an election. Both the George W. Bush and Barack Obama Justice Departments issued memorandums saying particular care should be taken not to take actions or time things with respect to an election. They say that nothing should be done “for the purpose of giving an advantage or disadvantage to any candidate or political party.”
Barr in April issued a somewhat narrower policy on election-year actions. According to Just Security:
The Barr memo covers only the opening of a criminal or counterintelligence instigation and, unlike the previous memos, does not apply to other DOJ actions relating to the conduct or disposition of a criminal investigation. Barr’s memorandum also requires that opening such an investigation must, in the case of a presidential campaign or candidate, be coordinated with his office.
And indeed, Barr has gone further than his predecessors in disclosing investigative information that could be beneficial to one particular 2020 candidate: Trump. He has regularly commented in the ongoing DOJ probe into the origins of the Russia investigation and has cast it in increasingly stark terms as a historic scandal.
Wolf’s comments are in a similar vein: feeding Trump’s claims about his real and perceived political opponents, and giving people who might be inclined to believe them something to grab hold of, even while disclosing little or no concrete information by which to judge the allegations.
Wolf isn’t a DOJ official, but his disclosures certainly, at the very least, test the spirit of how an administration is supposed to handle such matters. And judging by what we saw Monday night on successive Fox News shows, it probably won’t be the final time that ongoing alleged investigations will be wielded in ways that align with Trump’s case in the 2020 election.