A major pillar of our democracy — equal protection under the law — is crumbling under Donald Trump’s increasingly brazen assaults.
And it’s the free press’s job to sound the alarm, expose the damage, and champion its restoration. A devotion to fairness in the application of the law is a legitimate, traditional journalistic value that reporters and editors should feel no hesitation to express in their work.
There is no room for bothesidesism on this issue. Instead, it’s time to explain, in no uncertain terms:
- How badly Trump is perverting the Justice Department
- The importance of insulating the application of the law from political influence
- How the apolitical application of the law is a key distinction between democracies and banana republics
- Who is abetting Trump
- What it will take to rebuild what he has left in ruins
So far, some political journalists are rising to the occasion. Some are not.
Where we stand
This is, of course, not the first time Trump has undermined the principle of equal justice. During his campaign, he essentially promised to turn the Justice Department into a tool of vengeance against Hillary Clinton. From the very first day of his presidency, the nation has been in a state of emergency for this reason and others. He fired FBI director James Comey to protect himself and his friends. He has attacked judges who disagree with him.
In an unforeseeable turn of events, Trump’s first attorney general, Jeff Sessions, more or less maintained the Justice Department’s integrity when it came to criminal prosecution.
And in the wake of his Senate acquittal of impeachment charges, Trump is entirely unleashed. He is shameless. Where Barr attempts to hide his behavior, Trump is blowing his cover stories.
On Tuesday morning, Trump tweeted that a proposed sentence for his former fixer Roger Stone was a “miscarriage of justice!” After Barr overruled the career prosecutors who had made that recommendation – and all four withdrew from the case in protest, one even resigning from DOJ entirely — Trump openly celebrated. He hinted that he would pardon Stone. And asked what he had learned from impeachment, he replied: “That the Democrats are crooked.”
Trump has never acknowledged limits on his power – on Wednesday, he again claimed the “absolute right” to tell the Justice Department what to do – but his interference in the Stone case, along with his purge of truth-tellers, is something new.
Under a bold lead headline — Trump tests limits of executive power in settling scores – Washington Post reporters Philip Rucker, Robert Costa and Josh Dawsey stepped up. They cast the recent events in no uncertain terms. There was no hiding behind “critics say”:
President Trump is testing the rule of law one week after his acquittal in his Senate impeachment trial, seeking to bend the executive branch into an instrument for his personal and political vendetta against perceived enemies.
And Trump — simmering with rage, fixated on exacting revenge against those he feels betrayed him and insulated by a compliant Republican Party — is increasingly comfortable doing so to the point of feeling untouchable, according to the president’s advisers and allies.
In the span of 48 hours this week, the president has sought to protect his friends and punish his foes, even at the risk of compromising the Justice Department’s independence and integrity — a stance that his defenders see as entirely justified.
I am profoundly skeptical of sources who claim knowledge of what’s going on inside this hive of liars, but this was nevertheless useful context:
Some of Trump’s top aides have counseled him against speaking out on legal matters, warning him that doing so could wrongly influence proceedings because officials at the Justice Department or elsewhere would then know they needed to please him or risk his wrath. Trump has often responded, “I have a right to say whatever I want,” according to a former senior administration official who spoke on the condition of anonymity to discuss internal conversations.
“He knows exactly what he’s doing,” this official explained. “He knows that he has more power than anyone else in the government — and when he tweets, everyone has to listen to him.”
And the Post reporters quoted Joyce White Vance, a former U.S. attorney in the Obama administration, explaining:
If a president can meddle in a criminal case to help a friend, then there’s nothing that keeps him from meddling to harm someone he thinks is his enemy. That means that a president is fully above the law in the most dangerous kind of way. This is how democracies die.
Associated Press reporters Aamer Madhani, Jonathan Lemire and Mary Clare Jalonick were admirably direct:
In the week since his acquittal on impeachment charges, a fully emboldened President Donald Trump is demonstrating his determination to assert an iron grip on government, pushing his Justice Department to ease up on a longtime friend while using the levers of presidential powers to exact payback on real and perceived foes.
Trump has told confidants in recent days that he felt both vindicated and strengthened by his acquittal in the Senate, believing Republicans have rallied around him in unprecedented fashion while voters were turned off by the political process, according to four White House officials and Republicans close to the West Wing who spoke on the condition of anonymity because they were not authorized to speak publicly about private conversations.
“We are witnessing a crisis in the rule of law in America — unlike one we have ever seen before,” Senate Minority Leader Chuck Schumer said in a speech on the Senate floor Wednesday. Schumer called for the Justice Department’s independent inspector general to probe the department’s action in the Stone case. Later, House lawmakers announced Attorney General William Barr would come before them next month to answer questions.
Former Justice Department officials struggled to recall a precedent, describing it as norm-shattering turmoil that raises troubling questions about the apparent politicization of an agency meant to function independent of White House sway.
New York Times reporters Katie Benner, Charlie Savage, Sharon LaFraniere and Ben Protess forcefully described the latest doings — including the final step in the purge of the former U.S. attorney for Washington, Jessie K. Liu – but made the wise decision to lead with some crucial historical perspective:
For decades after Watergate, the White House treated the Justice Department with the softest of gloves, fearful that any appearance of political interference would resurrect the specter of Attorney General John Mitchell helping President Richard M. Nixon carry out a criminal conspiracy for political ends.
By contrast, they explained:
[N]umerous legal scholars say that Mr. Trump has shredded norms that kept presidents in check for decades, undermining public trust in federal law enforcement and creating at least the perception that criminal cases are now subject to political influence from the White House.
Elsewhere in the Times, Nicholas Fandos and Catie Edmondson made it clear that there will be no Senate Republicans riding to the rescue of the republic:
The warning sirens may be blaring from Democrats and Justice Department veterans. But having expressed confidence just last week that the impeachment trial might chasten him going forward, Republican senators now appear unwilling to grapple with the president who emerged: an emboldened Mr. Trump determined to tighten his grip on the levers of power.
They could have gone considerably further, though. As MSNBC anchor Chris Hayes tweeted:
It's not that congressional Republicans are *tolerating* Trump's abuses, it's that they are urging them on to the extent they further the party's consolidation of power.
Having the DOJ be the personal weapon of the president is a good thing for the GOP in the short term!
— Chris Hayes (@chrislhayes) February 13, 2020
Trump expressed a particular amount of rage at NBC on Wednesday, calling it “fake news… which reports the news very inaccurately. Probably more inaccurately than CNN, if that’s possible.”
That could be because NBC (or at least part of it) took the lead in making the connection that others in the media were hesitant to do. Carol E. Lee, Ken Dilanian and Peter Alexander reported Monday on Barr’s moves “to take control of legal matters of personal interest to President Donald Trump.”
I suspect some of the assertive news coverage in major outlets was also emboldened by the work of certain opinion columnists and cable-TV figures.
Washington Post opinion writer Greg Sargent, for instance, declared on Wednesday morning that “Trump is now openly flaunting his success in manipulating law enforcement for nakedly political and corrupt ends.” Sargent also quoted Michael R. Bromwich, the Justice Department inspector general from 1994 to 1999, saying that Trump “has utter disregard for our system. That is an existential threat to the institutions that most of us value, prize and have served.”
By Wednesday night, on both CNN and MSNBC, outrage was everywhere.
CNN’s Anderson Cooper announced “new evidence of a president unleashed and upfront about it, continuing his retribution against perceived enemies, intervening on behalf of his friends and doing it publicly.”
CNN’s Chris Cuomo declared that Trump “attacked the rule of law like we have never seen.” He explained: “It’s all BS and there is a trail to prove it. The deception is not new. In fact, it is the directness that’s startling.”
Donald Trump has learned his lesson, which is that Republicans have given him complete impunity. The rule of law is breaking down in this country. It would be familiar from anyone who has lived in a country where democracy has given way to authoritarianism — they would recognize exactly what is happening here.
Members of the public who turned to the network evening news to learn about what happened, however, learned basically nothing.
On the CBS Evening News, anchor Norah O’Donnell tamely suggested that Trump was “testing the independence of the Justice Department,” and noted that it was “highly unusual for the president of the United States to lash out at the career Justice Department lawyers involved in such a case.”
Correspondent Paula Reid chimed in that “Democrats charged Barr with enabling and abuse of power.”
That was prizewinning stuff compared to the NBC Nightly News, however, where anchor Lester Holt introduced what he called “the firestorm over Roger Stone.” Correspondent Peter Alexander’s report was mostly Trump quotes without pushback:
Alexander: President Trump tonight seething, insisting he did not interfere in the criminal prosecution of his long-time ally Roger Stone.
Trump: “You have murderers and drug addicts, they don’t get nine years. Nine years for doing something that nobody even can define what he did.”
And while the latest Times coverage was admirable, it’s worth noting that Peter Baker’s article from the day before was absolutely egregious.
Luppe B. Luppen, a lawyer and writer who has gathered a loyal following on Twitter as @nycsouthpaw performed a vivisection of Baker’s piece starting here, accusing it of “giving comfort to an administration that is right now purging our government of inconvenient nonpartisan civil servants and fostering a cult of personal loyalty.”
Baker’s story lamely referred to “an unsettled time in Mr. Trump’s Washington” during which “an aggrieved and unbound president has sought to even the scales as he sees it.” It presented as a question “whether he improperly sought to skew the prosecution in favor of a longtime associate and adviser.”
An exasperated Jim Fallows – a dean of the Washington press corps – pointed out:
The problem with “even the scales” is that, beyond simple both-sides-ism, it includes the premise that scales have been set *against* Trump.
By definition, re-balancing the scales means correcting for an [unfair] skew or imbalance.
— James Fallows (@JamesFallows) February 12, 2020
New York Times editors have a choice to make: Do they want to continue enabling Trump by publishing Baker’s internalizations of his point of view? Or do they want to tell it like it is?
Walter Shaub, who resigned in protest in 2017 from his job as head of the Office of Government Ethics, suggested some excellent questions reporters should constantly be asking Senate Republicans:
If Trump and Barr politicizing investigations and prosecutions isn't the red line for Senate Republicans, what is?
disobeying a judge?
sending troops to occupy a U.S. city?
postponing an election?
rounding up dissidents?
I honestly don't think there is a red line for them.
— Walter Shaub (@waltshaub) February 13, 2020
I think our newsrooms need to offer up some remedial civics – for instance reminding readers and viewers that presidents can’t just use the executive branch’s law enforcement powers however they want. Article II, Section 3 states that the president “shall take Care that the Laws be faithfully executed.” That means, among other things, that the president may not act for corrupt or self-interested reasons.
And, as this Protect Democracy white paper explains: “While he may shape generally applicable enforcement priorities, he may not prevent the enforcement of the laws that Congress has enacted against himself or his allies.”
Parts of this New York Times editorial could and should be cribbed by the news side:
When senior government officials abuse their power by wielding law enforcement for private ends, whether to attack their enemies or protect their allies, they strike at the heart of constitutional democracy. They make a mockery of “equal justice under law,” the central animating principle of the American experiment and one that, in the main, Republican and Democratic administrations have striven to honor.
That principle distinguishes liberal democracies based on the rule of law from autocracies in countries like Egypt, Russia and Venezuela — or from crumbling democracies in places like Hungary.
MSNBC’s Rachel Maddow delivered some passionate remarks on Wednesday night:
[T]here’s no line that this president will not cross. Tell me if you can imagine one. Tell me the thing that would be bad for America but good for him, but he wouldn’t do it because it’d be bad for the country. What’s beyond the pale for him? Seriously. There’s nothing he might conceive of as being to his advantage that he would not do to this country to get it.
Right, we get that now. Alarm sounded. We’re awake. We’re at the point, though, where just pointing this out isn’t enough. We have to recognize that pointing out where we’re at doesn’t stop our country from sliding further into a non-rule of law situation. Pointing it out, sounding the alarm knowing we’re there, isn’t enough. We’re there. We now have to plan specifically for how to survive it and how to fight it.
Maddow doesn’t have such a plan — though that’s not her fault. Journalists need to start reporting out the options.
And until then — very importantly — journalists need to keep sounding the alarm. They need to make sure we stay awake.